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2017 DIGILAW 903 (GUJ)

Govindbhai D. Chauhan v. State of Gujarat

2017-04-27

Z.K.SAIYED

body2017
JUDGMENT : Z.K. Saiyed, J. 1. By way of present revision application filed by the applicant-original accused under Section 397 read with Section 401 of the Cr.P.C., the applicant has challenged the order dated 30.10.2007 passed in Criminal Case No. 442 of 1999 by the learned Judicial Magistrate First Class, Thasra, whereby the applicant has been held guilty for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 and sentenced to undergo six months simple imprisonment with fine of Rs. 5,000/- in default, simple imprisonment for further period of one month. The applicant was further ordered to pay an amount of Rs. 80,000/- to the complainant within a period of three months from the date of the order. The said order was assailed by the applicant before the learned appellate Court. The learned Additional Sessions Judge, FTC Court No. 3, Nadiad vide order dated 24.11.2008 passed in Criminal Appeal No. 65 of 2007, confirmed the order passed by learned Judicial Magistrate First Class, Thasra. 2. The facts of the Prosecution in nutshell is such that as he and his father's cousin Mr. Prafulbhai Parsotambhai Upadhyay used to go to the fair of Shivratri at Junagadh to offer prayer for the last four years, they came into contact with accused. When they would go to attend Shivratri fair, he used to make immediate arrangement for boarding and lodging for the last four years. When accused would come to Sevaliya, they would meet him and thus, we became friends. The accused came to the house of complainant at Sevaliya during October, 1998. At that time, as he was facing financial crisis, he demanded Rs. 80,000/- for personal requirement. But, as he had not money at the respective time, he stated to think over it. Thereafter, he was again asked to make arrangement for money on the occasion of Christmas in December, 1998. As he informed that he would come with written write up or cheque for repayment of money, he stated that he would provide him financial assistance in the month of January prior to Uttarayan. Therefore, when accused came to his house at Sevaliya in the previous week of Uttarayan in the month of January, 1999, Prafulbhai was also present. The cash amount of Rs. 80,000/- was handed to the accused. Therefore, when accused came to his house at Sevaliya in the previous week of Uttarayan in the month of January, 1999, Prafulbhai was also present. The cash amount of Rs. 80,000/- was handed to the accused. In lieu of the same, accused gave cheque No. 104648 dated 16/03/1999 drawn on Bank of India, Junagadh Branch for Rs. 80,000/- bearing his account number 23529 towards collateral. He also gave assurance that if you deposit the said cheque in March, the same would be accepted. Thereafter, while informing accused about maturity date of cheque, he stated not to deposit cheque. Therefore, cheque was not deposited in the bank. Thereafter, accused was cheating. On making conversation with accused over the last phone, as accused stated to encash cheque in August, 1999, the said cheque was deposited in State Bank of India, Sevaliya Branch, on 16/08/1999 relying upon him. The said cheque was returned with return memo on 19/08/1999 with endorsement "Insufficient fund" and original cheque was returned with return memo on 24/08/1999 along with forwarding letter through his bank. His account was debited for commission and postage charge. Therefore, as per provisions u/s. 138 of the Negotiable Instrument Act, notice was sent to the accused at his permanent address at Junagadh and at the address of his office at Primary Health Centre, Bantava through learned advocate Mr. Mohmmad Yusuf I. Rashid by registered post on 04/09/1999. The cover containing notice was returned from Bantava with postman's endorsement "Refused to accept" on 07/09/1999. The notice sent to the residential address was returned with endorsement "Unclaimed" after seven days from 06/09/1999 to 12/09/1999. Thus, as per the law, though notice was served upon him and outstanding amount was not given, the present complaint has been lodged. 3. Thereafter, process was issued and the same was duly served. Plea was recorded at Exh. 11. On 19.04.2001, the learned trial Court has produced three witnesses at Exh. 24, 41 and 50 and produced several documentary evidences. 4. After filing closing purshish, statement of the applicant-accused was recorded further statement of the appellant-accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein the appellant has denied the case of the prosecution and has pleaded his innocence. The appellant have submitted that a false case is filed against him. The defence has also examined three witnesses at Exh. 56, 66 and 77. 5. The appellant have submitted that a false case is filed against him. The defence has also examined three witnesses at Exh. 56, 66 and 77. 5. Being aggrieved by and dissatisfied with the aforesaid judgment and orders, applicant-original accused has preferred this revision application. 6. Heard Mr. Manoj Shrimali, learned advocate for the applicant-accused and Mr. N.J. Shah, learned APP for the respondent-State. 7. Mr. Manoj Shrimali, learned advocate contended that the judgments and order passed by Courts below are illegal, invalid and improper. He has also contended that the Courts below have not considered the case of the defence and material evidence produced on record and has passed absolutely wrong order. He contended that the notice was not issued in accordance with law. It is the case of the prosecution that the complainant sent the notice to the residence and business place of the applicant-accused, which were returned with an endorsement of "not found" and "refused", however, the complainant ought to have examined the postman to prove the said fact, which is not done. Therefore, it appears that notice is not served to the respondent No. 2-accused and therefore, the present revision deserves to be dismissed solely on that count alone. He further contended that the order of the learned trial Court is illegal inasmuch as the learned Judicial Magistrate First Class, Thasra has no jurisdiction to try the case because the both the cheques were issued at Lunawada. He contended that in present case, two disputed cheques were given. When the first cheque issued by the complainant returned, the complainant wrote letter to the applicant-accused and therefore, cause of action can be considered at the relevant point of time. However, the complainant did not file the complaint and issued another cheque and gave another notice and raised cause of action and therefore, the said complaint cannot be considered as valid and legal in the eyes of law. Moreover, the complainant has not stated in his complaint as well as in his version that on what date the complainant has given money to the applicant-accused. Lastly, he contended that the both the Courts below have committed grave error in convicting the applicant-accused and therefore, the present applicant-accused may be released by giving the benefit of doubt. 8. As against this, Mr. Lastly, he contended that the both the Courts below have committed grave error in convicting the applicant-accused and therefore, the present applicant-accused may be released by giving the benefit of doubt. 8. As against this, Mr. N.J. Shah, learned APP has contended that the judgments and order passed by Courts below are absolutely just and proper. He has contended that the prosecution has proved its case beyond reasonable doubt. In present case, there is concurrent finding of both the Courts below. He further submitted he learned trial Court as well as learned appellate Court have rightly considered the documents produced on record and rightly convicted the applicant-accused for the alleged offence. He contended that the complainant through affidavit on oath and documentary evidence proved that the applicant-accused has borrowed money from the complainant and the applicant has given cheque to that effect. On presentation of the said cheque in bank, the said cheque returned with an endorsement of "insufficient fund". Thereafter, the complainant issued notice in accordance with law, which was refused and then the complaint was filed. He has contended that looking to the overall facts and circumstances of the case and evidence produced on record, orders passed by the Courts below are absolutely just and legal and are not required to be interfered with. He, therefore, prayed to dismiss the revision application. 9. I have gone through the impugned judgment and order passed by both the Courts below and oral as well as documentary evidence produced on record of the case. I have read the oral evidence of prosecution witness and also perused the charge framed against the applicant-accused. 10. In present case, one of the contentions of learned advocate for the applicant is that the complainant wrote letter to the applicant. If the said factum is believed, the said letter must be in possession of the applicant-accused and he could have produced the same, which he has not done and therefore, absolutely false and bogus story was created by the applicant-accused. Further, the applicant has given cheque for the dues of the complainant, which was returned with an endorsement showing "insufficient fund". Therefore, the complainant has given notice within stipulated period of time. And when the applicant-accused did not pay any heed to the said notice, complaint was filed. The complainant in his complaint has not stated that he had deposited the cheque twice. Therefore, the complainant has given notice within stipulated period of time. And when the applicant-accused did not pay any heed to the said notice, complaint was filed. The complainant in his complaint has not stated that he had deposited the cheque twice. On 16.03.1999, the applicant informed the complainant not to deposit the cheque and therefore, the complainant did not deposit the said cheque on 16.3.1999. Thereafter, the cheque was deposited in the month of August, 1999. If the cheque produced at Exh. 25 is perused, there is a stamp of Junagadh Branch which shows that the cheque was deposited in the account of the accused only once. The prosecution has examined employee of the Bank of India, Junagadh Branch at Exh. 50, who in his cross-examination stated that the cheque in dispute was not deposited twice. Therefore, the complainant has produce cheque twice is not coming on record. Therefore, the contention raised by the learned advocate for the applicant that two cheque were given has no force and basis. When facts have been fairly tried by two Courts and the same conclusion has been reached by both, this Court ordinarily will not interfere with concurrent findings of fact except in exceptional cases, where the findings are such that it "shocks the conscience of the Court or by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise substantial and grave injustice has been done. It must necessarily be left to the discretion of this Court having regard to the facts of a particular case. 11. I am, therefore of the opinion that both the Courts below have not committed any error in convicting the applicant-accused for the alleged offence. Therefore, no interference is required. 30.10.2007 passed in Criminal Case No. 442 of 1999 by the learned Judicial Magistrate First Class, Thasra and order dated 24.11.2008 passed in Criminal Appeal No. 65 of 2007 by the learned Additional Sessions Judge, FTC Court No. 3, Nadiad are hereby confirmed. The present Criminal Revision Application deserves to be dismissed and is hereby dismissed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. Application Dismissed.