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2017 DIGILAW 422 (GUJ)

Patel Manubhai Kanjibhai v. State of Gujarat

2017-02-20

Z.K.SAIYED

body2017
JUDGMENT : Z.K. Saiyed, J. 1. The applicant has preferred Criminal Revision Applications under Section 397 read with Section 401 of the Code of Criminal Procedure praying to quash and set aside the judgment and order dated 4.2.2004 passed in Criminal Case Nos. 165 and 166 of 1997 by the learned Judicial Magistrate First Class, Visnagar, District : Mehsana. Against the said order Criminal Appeals being Criminal Appeal Nos. 11 and 12 of 2004 were filed before the learned Sessions Judge, Mehsana. The learned Presiding Officer, Sixth Fast Track Court Judge, Mehsana by his judgment and order dated 24.10.2005 confirmed the order passed by the learned JMFC in Criminal Case Nos. 165 and 166 of 1997 and direct the applicant acquitted and discharged of all charges charged with and/or direct trial Court to permit the applicant to enter into the witness box and give deposition on oath with liberty to the prosecution to cross-examine and further to permit the production of the additional evidence on record and the same be taken on record in this revision and/or be sent for disposal with such directions to the trial Court. 2. Heard Mr. Dakshes Mehta, learned advocate for the applicant and Mr. Mehul Sharad Shah, learned advocate for the respondent No. 2 and Mr. N.J. Shah, learned APP for the respondent No. 1 - State. 3. Mr. Dakshes Mehta, learned advocate for the applicant has contended that both the Courts below have erred in not properly appreciating the scheme of Section 138 of the Negotiable Instruments Act and has failed in appreciating very important and material aspects in the case which is contained in the form of explanation below Section 138 in the Act that there exists legal debt and legal liability and also the debt and liability which are enforceable at law and in absence of such legal aspect it should be found impossible to come to the conclusion that any offence is made out at any stage. 4. He has contended that both the Courts below have erred in not appreciating the fact that what has been stated by the complainant in initial eight lines in para-8 of the complaint is materially and fundamentally contradicted and falsified by evidence of the complainant himself. 5. 4. He has contended that both the Courts below have erred in not appreciating the fact that what has been stated by the complainant in initial eight lines in para-8 of the complaint is materially and fundamentally contradicted and falsified by evidence of the complainant himself. 5. He has contended that complainant has failed in leading evidence in support of so called arbitral award and has further erred in accepting the arbitral award at the face value as the same is gospel truth and this has led to miscarriage of justice. He has contended that both the Courts below have erred in not coming to the conclusion that before filing of the complaint notice is issued and the notice is served and contents of the notice are within the knowledge of the complaint. He has contended that no evidence is led by the complainant to prove that the notice was ever tendered to the accused and that such notice was ever refused to be accepted. He has contended that there is possibility of the complainant having manipulated postal agency and thereby having procured endorsement is not considered at all and presumption drawn is not supported by any evidence. 6. He has contended that Ex. 42 - cheque is bearing rubber stamp marks of Vipul Engineering and bears the signature as the partner. The present applicant and his brothers were partners in Vipul Engineering and in such circumstances the account of Vipul Engineering in the Bank is joint account and such partner is liable to the bank. The alleged cheque is involving all the partners and it does not invest the complainant with any right. He has contended that except signature no writing in the body of the cheque are in the hand writings of the accused this falsifies the say of the complainant. 7. He has contended that arbitral award is not properly stamped and it is hit by the provisions of the Registration Act and cannot be seen for any purpose. He has contended that arbitral award is not legally declared and it is not signed by the complainant, accused or third brother. 7. He has contended that arbitral award is not properly stamped and it is hit by the provisions of the Registration Act and cannot be seen for any purpose. He has contended that arbitral award is not legally declared and it is not signed by the complainant, accused or third brother. He has contended that when the learned Judge was of the opinion that the Court has no jurisdiction to enforce arbitral award then the learned Judge should have come to the conclusion that the complaint based on so called arbitral proceedings itself is devoid of legal value and should have disposed of the case directing to wait till the decision of the appropriate Court. 8. He has contended that appellate Court seriously erred in rejecting the applications Ex. 22 and 23 and the same has caused irreparable loss, harm and prejudice to the applicant. He has contended that appellate Court on the ground that the applicant has not volunteered to give deposition before the trial in itself should not have shunted of the defence in as much as the prosecution would have had full opportunity to cross examine the applicant in the event of being examined. He has lastly contended that the matter otherwise justified the grant of an order of remand before the trial Court with liberty to the applicant to enter into witness box and give evidence as well as to bring the additional evidence on record. 9. Heard Mr. Mehul S. Shah, learned advocate for the respondent No. 2. He has no objection if the matter is remanded back to the trial Court. 10. I have gone through the papers produced in the Case. I have also gone through the evidence led before the trial Court. I have also gone through the Judgment of the trial Court as well as appellate Court. On perusal of the judgment of the learned trial Judge as well as appellate Court, it is the duty of the learned trial Judge to follow the provisions of law and he cannot jump the provisions of law. I found from the conduct of the learned trial Judge as well as Appellate Court that they have committed grave error of law and, therefore, applicant be permitted to enter into the witness box and lead evidence. I found from the conduct of the learned trial Judge as well as Appellate Court that they have committed grave error of law and, therefore, applicant be permitted to enter into the witness box and lead evidence. When the provisions of law is not followed by the learned trial Judge as well as Appellate Court the matter is required to be remanded for reconsideration of the Court below. 11. In the result, the Revision Applications are partly allowed. The judgment and order dated 4.2.2004 passed in Criminal Case Nos. 165 and 166 of 1997 by the learned Judicial Magistrate First Class, Visnagar, District : Mehsana and confirmed in Criminal Appeal Nos. 11 and 12 of 2004 by the learned Presiding Officer, Sixth Fast Track Court Judge, Mehsana vide judgment and order dated 24.10.2005 are hereby quashed and set aside. The case is remanded to the learned trial Court for deciding the Criminal Cases afresh after providing opportunity to both, the applicant as well as the respondent, purely on merits and in accordance with law. 12. With the above observations, this Revision Applications are disposed of. Rule is made absolute to the aforesaid extent.