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2023 DIGILAW 530 (GUJ)

Rashidmiyan Bhikhumiyan Malek v. State Of Gujarat

2023-03-28

NISHA M.THAKORE

body2023
ORDER : This Appeal is directed under Section 378 of the Criminal Procedure Code, at the instance of the original complainant against the judgment and order 22.11.2019 passed by the learned Judicial Magistrate First Class, Vaso in Criminal case no. 558 of 2017. 1.1 By the said judgment and order, the learned Magistrate has recorded acquittal of respondent no.2 for the alleged offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 2. The gist of the complaint is that the complainant and the original accused knew each other as the accused used to purchase tomatoes from the complainant. On 1.3.2016, the accused had purchased tomatoes worth Rs 1,23,400/- from the complainant for which he had issued cheque bearing no.006342, dated 20.4.2016 for the aforesaid amount drawn in ICICI Bank, Kheda Branch. It is the case of the complainant that the aforesaid cheque was given against the discharge of the legal dues. The said cheque was deposited by the complainant in the Bank Of India on 8.6.2016, however, the same was dishonored on the ground of funds insufficient. The aforesaid cheque was returned back by the concerned bank with memo of return with an endorsement of ‘funds insufficient’. The complainant was, therefore, constrained to send statutory legal notice dated 23.6.2016 which the complainant claims to have served by Registered Post A.D upon the accused on 13.7.2016. It is further contended by the complainant that inspite of due service of aforesaid legal notice, no reply was given by the accused. In such circumstances, the complainant had approached the Court of learned 2nd Additional Civil Judge and Judicial Magistrate First Class, Nadiad by submitting complaint under Section 138 of the Act. The said complaint was registered on 25.7.2016 as criminal case no. 7056 of 2016. Since the said Court had no jurisdiction to try the complaint, the aforesaid complaint along with the documents was transferred to the Court having jurisdiction under section 142 (2) of the Act by order dated 14.9.2017. The complainant was directed to receive the relevant documents and the complaint to be produced before the Competent Court. Pursuant to the aforesaid order the complaint was transferred to the Competent Court of learned Judicial Magistrate First Class, Vaso and by order dated 10.11.2017, the learned Magistrate proceeded for issuance of summons on the respective parties by fixing next date of hearing on 4.12.2017. Pursuant to the aforesaid order the complaint was transferred to the Competent Court of learned Judicial Magistrate First Class, Vaso and by order dated 10.11.2017, the learned Magistrate proceeded for issuance of summons on the respective parties by fixing next date of hearing on 4.12.2017. The said complaint was now registered as Criminal Case No. 558 of 2017. The verification of the complainant was recorded by the learned Magistrate. The accused had appeared before the learned Magistrate and had executed bail bond on 2.2.2018 and ultimately issues were framed and the complainant had led evidence. His Examination- in-chief was produced vide Exh. 11 and he was cross-examined by the accused. At that stage the complainant had produced two documents vide Exh. 12 which include original copy of the disputed cheque dated 20.4.2016 by Mark 12/1 and the original return memo of the concerned bank dated 8.6.2016 vide Mark 12/2. The aforesaid documents came to be accepted as evidence and were subsequently exhibited as Exh. 16 and Exh. 17 respectively. The Complainant had examined one Virendrabhai Bhadrilal Meena who is the officer of the concerned bank, vide Exh. 18 and one witness named Mustakmia Ahmedmia , who was examined vide Exh. 21. No other documentary evidence has been placed on record by the original complainant. The further statement of the accused under Section 313 of the Cr.P.C was recorded. On 25.6.2019, the complainant had submitted his written arguments vide Exh, 23. On the other hand, the learned counsel for the accused had raised objections regarding maintainability of the complainant by placing reliance upon the decision of this Court in the case of Anchor Capitals of India Ltd and Anr Vs. State of Gujarat reported in 1998 (3) GLR pg 1973, order dated 22.4.1998 passed in Misc. Civil Application No. 6657 of 1997 and of the Hon’ble Apex Court in the case of Krishna Janardhan Bhatt Vs Dattatraya G. Hegde, reported in AIR 2008 SC 1325 . The accused had objected maintainability of the complaint in absence of the compliance of essential requirement of statutory notice being send and served upon the accused. After hearing the learned counsels appearing for the respective parties, the learned Magistrate has proceeded to record the impugned order of acquittal by finding that the complainant had failed to comply with Section 138 (a) (b) (c) of the Act. After hearing the learned counsels appearing for the respective parties, the learned Magistrate has proceeded to record the impugned order of acquittal by finding that the complainant had failed to comply with Section 138 (a) (b) (c) of the Act. The Court at the same time noticed that the aforesaid fact itself was sufficient to rebut the presumption raised in favour of the complainant and thereby granted benefit of doubt and proceeded to acquit respondent no.2 for the offence under Section 138 of the N.I Act. Hence this Appeal. 4. Considering the grounds raised in the memo of Appeal this Court by order dated 18.1.2021 in Criminal Misc. Application no. 1733 of 2020, at the stage of Leave to Appeal under Section 378 (3) of the Cr. P.C had passed following order : “Leave to Appeal under Section 378(3) of Cr.P.C is granted. The application stands allowed accordingly. 5. The present Appeal was listed for admission hearing. This Court vide order dated 2.2.2021 had issued notice upon respondents which was made returnable on 2.3.2021. Considering the nature of dispute involved, the Court called for Record and proceedings. On 2.3.2021 Mr. Vimal A. Purohit learned advocate had entered his appearance on behalf of respondent no. 2 and in the meantime learned advocate for the appellant was requested to furnish set of appeals to the concerned advocate. On 16.3.2021, the specific stand was taken by the complainant that the statutory notice as well as the acknowledgement slip received by him were placed on record at the stage of filing of the complaint. However, the Trial Court has wrongly acquitted the respondent accused on the ground that the said documents were not produced. Considering the stand taken by the complainant this Court directed the learned advocate for compliance to place the same on record. The said order reads as under: "Learned advocate Mr. Bhimani appearing for the appellant submits that the appellant – complainant had already filed the statutory notice as well as the acknowledgment slip received by him before filing of the complaint, however, the trial Court has wrongly acquitted the respondent – accused on the ground that the said documents were not produced. He seeks time to produce the said documents which were produced before the trial Court. Put up on 23.03.2021.” 6. The matter was thereafter adjourned, as and when the request was made by the learned advocates on record. He seeks time to produce the said documents which were produced before the trial Court. Put up on 23.03.2021.” 6. The matter was thereafter adjourned, as and when the request was made by the learned advocates on record. At one stage considering, the aforesaid stand of the complainant, the Co-ordinate Bench had once again reminded Registry to call for the record and proceeding along with the paper book. On 8.12.2022, having noticed that the record and proceedings has been received the matter was adjourned in absence of the learned advocate for the appellant. On 4.1.2023, the matter was adjourned considering the request for learned advocate for the appellant. 7. Today, when the matter is taken up for hearing grievance was made by learned advocate for the appellant that the Registry has not permitted access to the record and proceedings in absence of Court order. Neither the paper book so called for has been made available to the learned advocates on record in absence of order of admission of Appeal. The reference was made to the earlier orders passed by this Court. Considering the grievance raised by the learned advocate, the Court had permitted the learned counsels appearing for the respective parties to go through the record and proceedings and thereafter matter was taken up for hearing in second session permitting learned advocate for the respective parties to make submissions on the merits of the case. 8. Having gone through the record and proceedings the learned counsel appearing for the respective parties were heard. 9. Mr. Niyant R. Bhimani, Legal Aid Counsel on record for the appellant , had once again raised the ground as contended earlier with regard to furnishing of the necessary documents, more particularly , the statutory legal notice and the acknowledgement slip and has submitted that the trial court on erroneous ground has recorded order of acquittal. By inviting the attention of this Court to the earlier order of co-ordinate Bench, he has submitted that considering his submission leave to appeal came to be granted by this Court. He, therefore, submitted that the Appeal is required to be admitted as a matter of course. 10. On the other hand, Mr. Purohit learned advocate has appeared on behalf of the respondent no.2 on record. He has vehemently objected to the aforesaid submissions of learned advocate on record for the complainant. He, therefore, submitted that the Appeal is required to be admitted as a matter of course. 10. On the other hand, Mr. Purohit learned advocate has appeared on behalf of the respondent no.2 on record. He has vehemently objected to the aforesaid submissions of learned advocate on record for the complainant. He has invited the attention of this Court to the findings and reasons recorded by the learned Magistrate and submitted that the complainant having failed to produce the original legal notice and the acknowledgment slip, has rightly arrived at a finding that the complainant has failed to satisfy the essential ingredients to attract offence under Section 138 of the N.I Act. He further placed reliance upon the decision of the Co-ordinate Bench dated 18.7.2022 passed in Criminal Misc. Application No. 12660 of 2021 in Criminal Appeal No. 983 of 2021 in the case of Alka Harilal Pandya Vs. Ramesh Ramjibhai Gohil (dead) and submitted that in absence of acknowledgement receipt of the statutory notice issued under provisions of Section 138 of the N.I Act, the Court had confirmed the order of acquittal. In absence of any evidence, the Court found that the offence under Section 138 of the N.I Act was not committed by respondent accused. He therefore, urged this Court not to entertain the present Appeal. 11. In rejoinder, Mr. Bhimani learned advocate on record for the appellant submitted that the aforesaid decision was in the case of absence of service of notice to the accused, the Court had proceeded considering the cross-examination of the complainant where she had admitted in her deposition that no cover having endorsement of “refuse to accept” is brought on record. In absence of such evidence, that the accused had received the demand notice from the complainant, the Court had recorded that no offence was made out under Section 138 of the N.I Act. He further submitted that the Court had also recorded acquittal having perused the impugned judgment which revealed that legally enforceable debt was also not proved. He, therefore, submitted that it was in a different set of facts, the Court has confirmed the order of acquittal. He once again urged this Court to allow this appeal and convict the respondent no, 2 for the offence punishable under Section 138 of the N. I Act. 12. He, therefore, submitted that it was in a different set of facts, the Court has confirmed the order of acquittal. He once again urged this Court to allow this appeal and convict the respondent no, 2 for the offence punishable under Section 138 of the N. I Act. 12. Having heard the learned counsels appearing for the respective parties, the only question which arises for consideration of this Court in the present appeal is whether the learned Magistrate has committed error in recording order of acquittal in absence of evidence of issuance and service of statutory legal notice to attract offence under Section 138 of the N.I Act. 13. I have carefully perused the original record and proceedings of the concerned Court. While going through the record and proceedings , this Court notices that initially the complaint was presented on 25.7.2016 before the Court of learned 2nd Additional Judicial Magistrate First Class, Nadiad. The complaint was registered as Criminal case No. 7056 of 2016. The verification of the original complainant was initially recorded before the learned 2nd Additional Judicial Magistrate whereby summons upon accused was issued on 20.10.2016. From the record, it transpires that on 14.9.2017, the learned 2nd Additional Civil Judge, JMFC, Nadiad, noticing the amendment being brought in the Act, held that the said Court had no jurisdiction to try the complaint and therefore the complaint along with the documents attached were directed to be transferred to the competent Court having jurisdiction under Section 142(2) of the Act. At the same time, the Court had permitted the complainant to receive the relevant documents and the complaint as to be presented before the competent Court. The case was transferred to the Court of Judicial Magistrate First Class, Vaso whereby the summons were issued upon the respective parties on 10.11.2017. It appears from the original record, more particularly, the list of documents produced by the complainant before the JMFC Court at Nadiad which is marked as Exh. The case was transferred to the Court of Judicial Magistrate First Class, Vaso whereby the summons were issued upon the respective parties on 10.11.2017. It appears from the original record, more particularly, the list of documents produced by the complainant before the JMFC Court at Nadiad which is marked as Exh. 3 reflects that in all six documents were placed on record which include copy of the disputed cheque (mark 3/1), copy of return memo of bank dated 8.6.2016 (mark 3/2), office copy of the legal notice send to accused by registered post A.D dated 23.6.2016 (mark 3/3), copy of registered post A. D dated 24.6.2016 (mark 3/ 4), copy of acknowledgement slip dated 13.7.2016 (mark 3/5) and copy of the account of the complainant (mark 3/6). The original record and proceedings reveals that the aforesaid documents are the xerox copies placed on record. The second list of document placed on record by the original complainant is produced vide Exh. 12 which includes two original documents i.e the disputed cheque which is at Exh. 15 and the return memo of the concerned bank which is admitted as Exh. 16. Except for the aforesaid documents the original complainant has failed to produce on record the original document of the demand notice (mark 3/3 ) the acknowledgement slip (mark 3/4) and (mark 3/5). In such circumstances, the Trial Court having notice the mandatory provision of Section 118 and Section 138 of the N.I Act has proceeded to record the order of acquittal. I am of the view that in absence of the original documents being brought on record, the essential ingredient to attract the offence under section 138 of the N.I Act is not proved. Mr. Bhimani learned advocate for the original complainant has made emphasis that the production of the disputed original cheque and return memo were sufficient evidence to establish the fact of dishonour of the cheque. He further submitted that the presumption available under Section 118 and 139 of the Act ought to have been drawn in favour of the complainant. However, the Court cannot ignore the statutory provisions, more particularly, Section 142 read with Section 138 of the N.I Act which demands that a notice in writing has to be send to the drawer of the cheque of the receipt of the information by him from the bank regarding the return of the cheque as unpaid. However, the Court cannot ignore the statutory provisions, more particularly, Section 142 read with Section 138 of the N.I Act which demands that a notice in writing has to be send to the drawer of the cheque of the receipt of the information by him from the bank regarding the return of the cheque as unpaid. In my opinion, in absence of the original documents which is the legal notice raising demand being not brought on record the aforesaid fact is not proved to attract the offence punishable under Section 138 of the N.I Act. There cannot be dispute to the proposition of law that Section 118 and Section 139 of the N.I Act raises statutory presumption in favour of complainant with regard to existence of legally enforceable debt. However, such presumption is rebuttable. The defendant accused has been successful in raising probable defence by challenging the service of statutory notice informing him about dishonour of the cheque. In such circumstances, the onus has shifted upon the complainant who was oblidged to prove as a matter of fact and upon its failure to prove by leading cogent material on record, has resulted into non-grant of relief of conviction under the N.I Act. This Court cannot ignore the fact that the accused would be subjected to criminal liability and therefore the standard of proof upon the complainant is more and has to prove his case beyond all reasonable doubt. In absence of evidence, no error can be attributed to the learned Magistrate recording acquittal of respondent no. 2 for the offence punishable under Section 138 of the N. I Act. 14. The present Appeal therefore fails. Notice is discharged. Record and proceedings is directed to be send back to the concerned Court forthwith.