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2016 DIGILAW 860 (GUJ)

Aarifbhai Hasanbhai Kadiyat v. State of Gujarat

2016-04-21

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. The appellant has preferred the present appeal under section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 22.5.2014 rendered by learned 4th Additional Senior Civil Judge & Judicial Magistrate, First Class, Junagadh in Criminal Case No. 2728 of 2012. 2. The short facts giving rise to the present appeal are that respondent No. 2 and the appellant entered into the business agreement dated 26.11.2010 whereby the appellant is appointed for marketing contract and his remuneration would be 20% of billing amount and is also entitled for appointed charges and the said agreement would be in existence upto 26.11.2013. It is the case of the appellant that by the said agreement, the appellant was permitted for doing all the marketing activities of the products of Rajashree Branch Natural Aloe vera Herbals Products within all over India and the foreign country and, thereby the appellant developed and promoted the products of respondent No. 2 company. It is the case of the appellant that the appellant has executed the receipt and the confession in favour of respondent No. 2 on 31.1.2011 and thereby it was declared that the appellant has received cheque Nos. 019474 to 019494 of Central Bank of India, Anjar (Kachchh) totalling 21 cheques against the proposed dues. The appellant, therefore, deposited cheque No. 019474 dated 9.7.2012 which was dishonoured with the endorsement "insufficient funds". Thereafter, statutory notice was issued and ultimately, the appellant filed Criminal Case No.2728 of 2012 against respondent No. 2 on 24.8.2012 for the offence punishable under section 138 of the Negotiable Instruments Act 1881. 3. In pursuance of the complaint, the learned Magistrate recorded verification of the complainant and issued the process against respondent No. 2. In pursuance of the process issued by learned Magistrate, respondent No. 2 appeared and plea of the accused was recorded at Exh. 9. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the appellant has examined himself at Exh. 15 and also produced documentary evidences. 3.2 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. 15 and also produced documentary evidences. 3.2 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed, as such. 6. On the other-hand, Mr. Umesh Trivedi, learned Advocate for respondent No. 2 accused has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Mr. Trivedi further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in passing the impugned order acquitting the accused, and therefore, the present appeal deserves to be dismissed. 7. This Court has heard Mr. C.R. Mishra, learned advocate for the appellant and Mr. Umesh Trivedi, learned advocate for respondent No. 2 accused. 8. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. On going through entire material available on record, it clearly reveals that the appellant is working as Marketing Consultant and activities thereto in the name and style of Shandar Standard Trade Link (Marketing Consultant), having office address as Zanzarda Road, Jivan Jyot, Block No. 7/F, Near Gori Pir Dargah, Junagadh, whereas respondent No. 2 is Proprietor of Shree Raj Bhavani Herbals (Rajashree) Natural Aloe Vera Herbals Products and his registered office is situated at Anjar, Kachchh. 8.1 It is the case of the appellant that respondent No. 2 and the appellant entered into the agreement on 26.11.2010 at Exh. 33 and at that time, the complainant was paid Rs. 3,00,000/- by way of cheque as appointment charges. 8.1 It is the case of the appellant that respondent No. 2 and the appellant entered into the agreement on 26.11.2010 at Exh. 33 and at that time, the complainant was paid Rs. 3,00,000/- by way of cheque as appointment charges. It also reveals that at the time of entering into the agreement, the complainant was assured 20% commission over billing amount for entire marketing of products manufactured by respondent No. 2. The respondent No. 2 in discharge of his obligation, for the payment of dues if any occurred in future towards 20% commission of billing amount, executed writing dated 31.1.2011 at Exh. 34 whereby about 21 blank signed cheques were handed over to the appellant. 8.2 It is very surprising that cheque mentioned in the aforesaid writing Exh. 34 has been used by the present complainant towards expenses incurred in marketing for an amount of Rs. 2,13,591/- though it is the case of the complainant that respondent No. 2 issued cheque No. 019474 dated 9.7.2012 for Rs. 2,13,591/- towards legally enforceable dues and respondent No. 2 assured the complainant that it will be honoured as and when it will be presented for encashment. Accordingly, the complainant presented the said cheque in the bank which was returned with endorsement "insufficient funds". Thereafter, legal notice was issued on 18.7.2012 narrating some facts. However, respondent No. 2 accused replied the said demand notice vide Exh. 31 through his lawyer stating that the aforesaid cheque was not issued for any legally enforceable dues, but it was given and due discharge of his obligation as per the agreement entered into between the parties on 26.11.2010 and along with it, 20 other blank signed cheques were also handed over to the complainant being the payment of the complainant towards 20% billing amount. 8.3 On going through the entire material available on record, nowhere the complainant has produced any iota of evidence that the amount of Rs. 2,13,591/- had become due from respondent No. 2. Not only that, whatever statement, the complainant has made on oath in the complaint as well as while deposing before learned Magistrate, he has stated false story as if the aforesaid cheque No. 019474 has been handed over on 9.7.2012 towards legally enforceable dues of Rs. 2,13,591/-. 2,13,591/- had become due from respondent No. 2. Not only that, whatever statement, the complainant has made on oath in the complaint as well as while deposing before learned Magistrate, he has stated false story as if the aforesaid cheque No. 019474 has been handed over on 9.7.2012 towards legally enforceable dues of Rs. 2,13,591/-. However, in reality, the aforesaid cheque No. 019474 was handed over to the complainant along with other 20 blank signed cheques on 31.1.2011 for due discharge of obligation on the part of respondent No. 2 of charges to be paid to the complainant towards 20% billing amount if any. In that view of the matter, this Court is of the considered opinion that learned trial Court has rightly acquitted respondent No. 2 as it appears from the record that the complainant himself has committed fraud by using the aforesaid cheque as if it has been issued by respondent No. 2 on 9.7.2012 for legally enforceable dues of Rs. 2,13,519/- though the said cheque was already handed over on 31.1.2011. This fact has not been stated by the complainant itself is indicative of fraud committed by the complainant himself upon respondent No. 2. 8.4 It can also be noticed that learned trial Court has elaborately dealt with the evidence on record and respondent No. 2 has tendered all the documentary evidences in order to prove that blank signed cheque was not handed over as claimed by the complainant on 9.7.2012 for legally enforceable dues. Therefore, no provisions of section 138 of the Negotiable Instruments Act 1881 are attracted as it does not constitute any offence so far though the cheque in question was dishonoured due to "insufficient funds". 9. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. 10. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondent of the charges leveled against him. This Court finds that the findings recorded by learned trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court finds that the findings recorded by learned trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned court below and hence finds no reasons to interfere with the same. 11. In the result, this appeal fails and accordingly, it is dismissed. R & P, if any, be sent back to the trial Court forthwith.