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2024 DIGILAW 1095 (GUJ)

Dhruvaben Bhaveshkumar Mehta v. State Of Gujarat

2024-05-02

M.K.THAKKER

body2024
JUDGMENT : 1. The present revision application is filed under section 397 read with section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C”) challenging the legality, validity and propriety of the judgment and order dated 28.09.2011 and 25.06.2015 passed by the learned Additional Chief Judicial Magistrate and learned 6th Additional District and Sessions Judge, Mahesana in Criminal Case No. 889 of 2010 and Criminal Appeal No. 124 of 2011 below Exh.46 respectively whereby, the appellate court had dismissed the Criminal Appeal no. 124 of 2011 confirming the judgment and order dated 28.09.2011 passed by the learned trial court convicting the present petitioner- original accused for offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I.Act”) and order to undergo sentence of simple imprisonment of one year along with fine of Rs.10,000/- and in default, simple imprisonment of further period of three months was imposed. 2. The facts of the case is that the respondent no. 2 had filed private complaint under section 138 of the N.I.Act for the dishonouring of the cheque of Rs.10,40,000/- being Criminal Case No. 889 of 2010. On the conclusion of the trial petitioner was held guilty and ordered the sentence as aforesaid. 2.1. Against the judgment and order of learned trial court, applicant has filed the Criminal Appeal before the learned appellate Court along with the application below Exh.5 for the purpose of suspension of sentence. Learned trial court, at the end, dismissed the Criminal Appeal being No. 124 of 2011 and has confirmed the judgment and order of conviction of the learned trial court. Being aggrieved and dissatisfied with the above judgment and order, the present revision application is filed. 3. Heard the learned advocate Mr.Vaibhav Sheth for the applicant and learned advocate Ms.Tejal Vashi for the respondent no.2. 3.1. Learned advocate Mr.Vaibhav Sheth submits that initially the transaction which was carried out between the complainant and the present applicant was with regard to the purchase of the vehicle and the loan was sanctioned for an amount of Rs.13,15,000/- on 07.05.2007 and the hypothecation agreement was executed to purchase the vehicle bearing No. TATA LPT 2515 697 TCIC 6X registration no. GJ-18X-9093 3.2. The repayment of loan was fixed in 60 monthly installments of Rs.33,000/-. GJ-18X-9093 3.2. The repayment of loan was fixed in 60 monthly installments of Rs.33,000/-. The applicant has paid the total amount of installment of Rs.8,30,300/- which was admitted during the cross-examination by the complainant and thereafter, the respondent has taken the possession of the vehicle and it was sold to the other person and recovered amount of Rs. 3,63,000/-, however, despite the same, the respondent, accused had deposited the cheque which was lying as a security cheque with them for the amount of Rs. 10,40,000/- and on dishonouring of the same, the impugned complaint came to be filed. 3.3. Learned advocate Mr.Vaibhav Sheth submits that as per the loan agreement which was produced below Exh.21, a specific clause is mentioned for consequence on event of default, clause 12 wherein, it is provided that lenders will issue the notice for terminating the agreement, demand the product for which the loan was availed, sell the product to public or private persons, would issue the notice intimating to pay the remaining amount and would exercise the right available under the law to recover the amount. 3.4. Learned advocate Mr.Vaibhav Sheth submits that in any case the respondent lender is not entitled to mis-use the security cheque which is lying as per the agreement which is executed between the parties. 3.5. Learned advocate Mr.Vaibhav Sheth submits that as both the courts below committed material error in not considering the legality and validity of this agreement and passed the impugned judgment and order. Therefore, the present revision application is required to be allowed and the judgment and order passed by both the learned courts below is required to be quashed. 3.6. Learned advocate Mr.Vaibhav Sheth further submits that while confirming the order of the learned trial court, it was observed by the learned appellate court that the applicant did not deposit 25% of the cheque amount without considering the fact that the condition to deposit 25% of the cheque amount was challenged before this Court in Special Criminal Application (Quashing) No. 3988 of 2014 which was allowed by this Court. However, without examining in detail under misconception of fact, learned appellate court has cursorily confirmed the judgment and order of the trial court and therefore, also the revision application is required to be allowed. 3.7. However, without examining in detail under misconception of fact, learned appellate court has cursorily confirmed the judgment and order of the trial court and therefore, also the revision application is required to be allowed. 3.7. Learned advocate Mr.Vaibhav Sheth submits that the judgment and order of both the courts below suffers from perversity and on illegal appreciation of evidence. Therefore also, the impugned judgment and order deserves to be set aside. 3.8. On the other hand, this revision application was vehemently opposed by the learned advocate Ms.Tejal Vashi for the respondent-accused who submits that the signature on the cheque was not disputed by the present applicant neither demand notice dated 04.12.2009 was replied and as per the agreement, the applicant agreed to pay Rs.19,00,000/- though the loan of Rs.13,15,000/- was sanctioned and on committing default cheque deposited, which was dishonoured and therefore impugned complaint was filed under section 138 of the N.I.Act. It is submitted that both the courts below, after recording the evidence, passed judgment and order of conviction. Therefore learned advocate Ms.Tejal Vashi prays not to interfere with the impugned judgment and order of conviction. 4. Considering the arguments advanced by the learned advocates for the respective parties and examining the record thoroughly, before discussing the merits of the case, scope under revisional jurisdiction is required to be considered. 5. The power and jurisdiction of Higher Court under Section 397 Cr.P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor Vs. Ramesh Chandra (2012) 9 SCC 460 where scope of Section 397 has been considered and succinctly explained as under: “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC.” 6. Keeping in mind the above ratio and examining the record and proceedings thoroughly, it transpires that the hypothecation agreement was executed between the applicant and the respondent- complainant for the purchase of vehicle bearing no. TATA LPT 2515 697 TCIC 6X having registration no. GJ 18 X 9093 and the amount of Rs.13,15,000/- was given to the applicant by way of loan which is to be repaid in 60 monthly equal installments of Rs.33,000/-. 6.1. During the cross-examination it was admitted by the complainant that “as per the schedule dated 13.11.2009 the applicant has deposited Rs.8,30,300/-. The applicant has handed over the vehicle on 17.12.2009 to the complainant. No notice issued to the applicant with regard to the handing over the possession of the vehicle. On 02.09.2008 the vehicle was given by the accused to Tulsibhai Malabhai. The applicant has handed over the vehicle on 17.12.2009 to the complainant. No notice issued to the applicant with regard to the handing over the possession of the vehicle. On 02.09.2008 the vehicle was given by the accused to Tulsibhai Malabhai. Said Tulsibhai Malabhai paid 11 installments having total amount of Rs.3,63,000/- which was accepted by the complainant company. At present the vehicle is in possession of the complainant company. The finance of Rs.13,15,000/- was given and as per the agreement below Exh 21, the agreement value was Rs.19,47,000/-. Therefore, on deducting the finance amount the remaining amount would be towards the interest and the finance charge. To show that how this amount of Rs.10,40,000/- comes in the cheque, there were no documents except the statement. After 20.09.2008 complainant have credited the amount of Rs.3,63,000/- in the account of accused. It is admitted by the complainant that after the cheque was dishonoured and on receiving the notice, the respondent-accused came to our office”. 6.2. In view of the above cross-examination, it transpires that the loan was valued for the amount of Rs. 13,15,000/- and as per the schedule dated 13.11.2009 out of the aforesaid amount, Rs.8,30,300/- was paid. In addition to that, Tulsibhai Malabhai Zala who was having the possession of the vehicle also paid 11 installments of total amount of Rs.3,63,000/- and thereafter, the possession of the vehicle was taken by the complainant company on 17.12.2009. 6.3. 13,15,000/- and as per the schedule dated 13.11.2009 out of the aforesaid amount, Rs.8,30,300/- was paid. In addition to that, Tulsibhai Malabhai Zala who was having the possession of the vehicle also paid 11 installments of total amount of Rs.3,63,000/- and thereafter, the possession of the vehicle was taken by the complainant company on 17.12.2009. 6.3. The agreement which was executed between the parties which was produced below Exh.21, if the same is examined, then it comes on the record that clause 12 is reflected for the consequence of default which is reproduced herein below: 12) Consequences upon event of default: 12.1 Upon the occurrence of any event of default and any time there after, the Lenders shall without prejudice to its rights in law, be entitled to declare all sums due and to become due hereunder for the full term of agreement as immediately due and payable including that the Borrower shall be liable to pay to the Lender foreclosure charges calculated as the percentage (as per schedule 1) of the balance principle outstanding along with other dues including unpaid installments, service taxes, late charges etc., due as on date of such declaration and upon the Borrower failing to make the said payment in full within 7 days thereof, the Lender may, at its sole discretion, do anyone or more of the following: i) Upon notice to the Borrower terminate this agreement; ii) Demand that the Borrower should return the Product to the Lenders at the risk and expense of the Borrower, in the same condition it was delivered to him (Ordinary wear and Tear Excepted) at such Location as the lender may designate and upon failure of the borrower to do so within the period of demand the lender/ agents/ allies as agent and constituted attorney of the Borrower can enter upon premises where the product is located and take immediate possession of and remove the same without liability to the lenders or their agents of such entries or for damage to property or otherwise. Upon such return of the product or upon the lender taking possession of the product as herein before stated the loan agreement can be foreclosed or terminated by the lender at its discretion and provided however the remedies available to the lender as herein given shall survive such foreclosure and termination of loan and the lender shall be entitled and authorized to exercise its rights herein including in connection with the product to recover its dues under this Agreement. iii) Of such terms and conditions and for such consideration as the Lenders may deem fit with or without any notice to the Borrower sell the Product at a public or private sale, otherwise dispose of upon such return of the Product or use, or operate, lease to others or keep idle search Product all free and clear of any rights to the Borrower and without any duty to account to the Borrower for such action or inaction or for any proceeds in respect thereof. iv) By written notice to the Borrower, require the Borrower to pay to the lender (as liquidated damages or loss of bargain and not as a penalty) on the date specified in such notice and amount (plus interest at the rate of 3% per month) for the period until receipt of said amount) equal to all unpaid periodical installment payments and all other payments which, in the absence of a default, would have been payable by the Borrower hereunder for the full term hereof, or v) Exercise any other right or remedy which may be available to them under the applicable law. vi) It being agreed and understood by the Borrower that the right to of the Lender to recover the amount payable and/ or repayable or reimbursable to the satisfaction of the Lender shall survive any such Cancellation of Loan and/or termination if attached and the Lender's rights wherever given in connection with initiating of action for enforcing its right to recover the amount shall also survive the Cancellation of the Loan or the termination of the agreement as the case may be and the Lender shall be entitled to take all or any of the steps therefore and the Borrower shall not take defence of such termination or cancellation of Loan under this agreement. 12.2 a) Distribution on realization The net proceeds of sale, realization, recovery and/ or insurance claim proceeds relating to the Product herein, on receipt by the Lender shall be applied at the Lender’s absolute discretion in the manner it things fit. The Borrower shall continue to be liable for any deficiency in the amount due to the Lender by the Borrower after adjustment of the net proceeds of sale, realization, recovery and/ or insurance claim as above. b) No interest or compensation shall be payable by the Lender to the Borrower on the proceeds to be held by the Lender or during the period the same shall be held by the Lender for being applied in terms of clause 12.2(a) on distribution of realization. c) Upon termination or earlier determination of this Agreement or the cancellation of the Loan as the case maybe the Lender shall as the absolute Lender of the Product be at liberty to sell or otherwise dispose off the same in such manner as they may deem fit including by private sale which shall not be questioned or challenge by the Borrower or exercise, any one or more of the rights and remedies set out in this Agreement. d) If the price recovered on such sale or disposal falls short of the aggregate amount of installments remaining due and payable, the Lenders may, by a notice in writing, call upon the Borrower to pay the difference within such days of the receipt of the Notice by the Borrower, together with all over due some, owing and payable by the Borrower to the Lenders under by virtue of these presents and the Borrower agrees to make such payment without demur. 12.3 In addition and without prejudice, to what is stated above, the Borrower shall be liable for all legal and other costs and expenses resulting from the foregoing defaults from exercise of the Lender’s remedies, including but not limited to possession of any of the Product and/ or collection recovery of all or any charges payable by the Borrower/ Co-Borrower as the case maybe. 12.4 No remedy referred to hereinabove is intended to be exhaustive, but the same shall be in addition to any other remedy available to the lenders at law. 12.4 No remedy referred to hereinabove is intended to be exhaustive, but the same shall be in addition to any other remedy available to the lenders at law. The Lenders reserves the right to appoint bankers or financial institutions or any other persons it deems fit as their attorney or agent for the purposes of enforcing the right and remedies under this agreement. 7. On perusal of various clauses of the agreement it would reveals that owner is not entitled to present any of the post dated cheques for encashment after termination of agreement, especially, after the vehicle was repossessed by him. Even though the post dated cheques issued by the hirer were supported by consideration at the time when it was issued, it was seized to be so when the vehicle was repossessed. The consideration had failed subsequently. 8. This court has gone through the decision of the Hon’ble High Court of Gujarat in Narpat Motisinh Purohit Vs State of Gujarat reported in 2021 LawSuit(Guj) 4957, wherein the Hon’ble High Court has held that “7. In the case of Indus Airways Private Limited Ors. Vs. Magnum Aviation Private Limited & Anr., reported in (2014) 12 SCC 539 , the Hon'ble Supreme Court while considering the expression "debt or other liability", held as under: "The explanation appended to Section 138 of the NI Act explains the meaning of the expression "debt or other liability" for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The explanation leaves no manner of doubt that to attract an offence under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of existing or past adjudicated liability is sine qua non for bringing an offence under Section 138. If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise, and material or goods for which purchase order was placed is not supplied, the cheque cannot be held to have been drawn for an exiting debt or liability. The payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability. If at the time of entering into a contract, it is one of the conditions of the contract that the appellant purchaser had to pay the amount in advance and there is breach of such condition then the appellant purchaser may have to make good the loss that might have occasioned to the seller but that does not create a criminal liability under Section 138. For a criminal liability to be made out under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque." 7.1 In the case of Rajkumar Sharma Vs. Shriram Finance Co. Ltd. (supra), Chhattisgarh High Court has referred to the facts of the case, observing that petitioner therein had entered into Hire Purchase Agreement with respondent - Shriram Transport Finance Company Ltd. and had obtained loan for the purchase of a Truck. As per the agreement, the petitioner had to make installments and petitioner had also given postdated Cheques by way of security, so that the same could be utilized by the company in the event, if any defaults in paying the monthly installments. It has been observed that, in the month of January 2008, the Company on account of an alleged default on the part of the petitioner in paying the installments, suddenly without any intimation/notice, forcefully seized the vehicle and the Company did not give any information of the seizure of the vehicle to the petitioner. It was further observed that as per the letter issued by the respondent Company, the vehicle was further sold and Company had realized the value of the said vehicle towards meeting the loan repayment. Thereafter, respondent Company deposited the cheque for clearance, which was returned with reasons assigned as 'insufficiency of funds'. The Court in the said judgment, made observations in paragraph nos.9, 10 and 11 as under: "9. Thereafter, respondent Company deposited the cheque for clearance, which was returned with reasons assigned as 'insufficiency of funds'. The Court in the said judgment, made observations in paragraph nos.9, 10 and 11 as under: "9. In light of the aforesaid decisions rendered by the different High Courts and in respectful agreement to the ratio laid down in these judgments, in the instant case also, as is evident from the document (Annexure A-3) filed by the Petitioner issued by the Respondent, the Respondent has taken repossession of the vehicle and has also further sold it and realized the sale proceeds and, under the said circumstances, I am of the opinion that the hire-purchase agreement entered into between the Petitioner and the Respondent gets determined ipso facto. 10. Section 138 of the N.I. Act treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The Explanation leaves no manner of doubt that to attract an offence u/s 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. The very fact that the Respondent has taken repossession of the vehicle and has also sold the said vehicle and the sale value of the said vehicle has also been adjusted for meeting the loan repayment, the agreement on the basis of which the postdated cheques were issued cannot be put for clearance for the reason that the Respondent by virtue of the two acts on their part; firstly, of taking possession of the vehicle and, secondly, of sale/auctioning the said vehicle, stood determined. Therefore, the cheques which have been subsequently put for clearance and got dishonoured would not fall within the ambit of legally enforceable debt or other liability. 11. For the foregoing reasons, the Petition u/s 482 of CrPC is allowed and the complaint case initiated by the Respondent against the Petitioner deserves to be and is hereby quashed." 8. Here, in the instant case, prior to the filing of the criminal complaint before the concerned Judicial Magistrate, the financial institution, Shriram Transport Finance Company Ltd., had admittedly got repossession of the vehicle, therefore, the agreement entered into between the parties would get determined ipso facto by such repossession. 8.1 The Kerala High Court in case of Sudha Beevi Vs. Here, in the instant case, prior to the filing of the criminal complaint before the concerned Judicial Magistrate, the financial institution, Shriram Transport Finance Company Ltd., had admittedly got repossession of the vehicle, therefore, the agreement entered into between the parties would get determined ipso facto by such repossession. 8.1 The Kerala High Court in case of Sudha Beevi Vs. State of Kerala (supra), raised a short question to the effect that, whether postdated Cheques issued by the hirer at the time of execution of the agreement continue to remain as valid instruments supported by consideration once the agreement gets "determined ipso facto"? While giving the meaning of consideration, it was observed that consideration is sine quo non for any legally enforceable contract. The facts of the case, as observed in the case of Sudha Beevi (supra) revealed that Cheque was presented for encashment after the vehicle was seized by the complainant. It is was observed that, going by the terms of agreement, it stood "determined ipso facto" on default of the hirer to pay the installments and also on seizure of the vehicle by the owner. The remedy available to the owner would be in accordance to the terms and conditions decided. Thus, the Court thereby laid down that once financial institution/owner exercised option of seizure of the vehicle, the postdated Cheques obtained from the hirer cannot be presented for encashment after the seizure. Though, the owner has to take recourse to other legal remedies for recovery of the balance amount, if any, when the vehicle is sold subsequently, the owner can recover the balance amount after adjusting the sale proceeds of the vehicle. 8.2 Section 138 attracts the penal provision for "debts or other liabilities", which may not be legally enforceable debts or other liabilities if the instrument by way of cheque is not supported by consideration. Section 43 of the N.I. Act deals with a negotiable instrument made without consideration. If a negotiable instrument is made or drawn without consideration it creates no obligation of payment between the parties to the transaction. Similarly, if the consideration for which the instrument was made or drawn has failed subsequently, then also the instrument creates no obligation at all. Relevant portion of Section 43 is reproduced herein for ready reference: "43. Negotiable instrument made, etc., without consideration. Similarly, if the consideration for which the instrument was made or drawn has failed subsequently, then also the instrument creates no obligation at all. Relevant portion of Section 43 is reproduced herein for ready reference: "43. Negotiable instrument made, etc., without consideration. - A negotiable instrument made, drawn, accepted, indorsed, or transferred without consideration, or for a consideration which fails, creates no obligation of payment between the parties to the transaction. " 8.3 After repossession of the vehicle, Shriram Transport Finance Company Ltd. had sold the vehicle and the sale proceeds admittedly would be no doubt adjusted towards loan repayment, the complainant/owner has already initiated steps to recover the liability from the hirer. 8.4 The basic ingredients for a complaint under Section 138 of the N.I. Act, would be that the cheque ought to have been issued for discharge in whole and in part of any debt or other liabilities, which are legally enforceable. The said fact does not get establish in view of act of finance Company, since the vehicle was repossessed on 28.12.2018 and was subsequently sold to third party. The Hire Purchase Agreement between the owner and the hirer stood determined by act of parties, the cheques accepted by the owner in advance for repayment of the hire would become instruments without consideration as the consideration has failed. In such circumstances, the remedy available to the owner is to realise the balance hire due from the hirer or to sue for damages for the breach of the agreement. 8.5 It is stated by advocate Mr. Gajjar that the complainant Company had failed to produce the copy of the Hire Purchase Loan Agreement. It was necessary for the complainant Company to have produced the original Hire Purchase Agreement for the perusal of the trial Court Judge. The complainant - Company, however, had disclosed before the Judicial Magistrate, First Class, Vadodara, in the complaint that, the Company is a Non- Banking Financial Institution and its business was Hire Purchase of vehicle, which suggests that the agreement entered into would have been a Hire Purchase Agreement and the terms and conditions has been decided. The act of repossessing the vehicle has determined the agreement and therefore, the cheque in the hands of the Company would be an instrument without consideration. The act of repossessing the vehicle has determined the agreement and therefore, the cheque in the hands of the Company would be an instrument without consideration. The cheque, which were accepted by the Company towards advance of repayment would become an instrument for which consideration has failed, therefore any demand of cheque money by way of legal notice as provided under Section 138 of the N.I. Act, would lose its shine, as would not be for legally enforceable debts or liability.” 9. In view of the above decision, this Court without hesitation comes to the conclusion that act of repossession the vehicle has determined by the agreement and therefore the cheque in the hands of the company which was taken at the time of execution of agreement would be an instrument without consideration. In other words, the cheque which was accepted by the company towards the security would become an instrument of which consideration has failed and therefore, the demand of cheque amount by way of legal notice as provided under section 138 of the N.I.Act would also lose its shine as it was not for the legally enforceable debt or liability. 9.1. This Court is conscious of the fact that in exercise of the revisional jurisdiction, this Court should be loathe in re-appreciating the evidence upsetting the finding recorded by both the courts below. However, such exercise is not prohibited, more particularly, when the court finds that findings given by both the courts below are afflicted by ex-facie infirmities. The finding of fact given on this bare ground even in the concurrent, can never be binding on revisional court, an illegal finding does not become legal only because it is concurrent. 10. In view of the above, the findings recorded by the learned trial court as confirmed by the learned appellate court for the conviction under section 138 of the N.I.Act deserves to be set aside and the applicant deserves to be acquitted. 11. Resultantly, this revision application is allowed. The judgment and order dated 28.09.2011 and 25.06.2015 passed by the learned Additional Chief Judicial Magistrate and learned 6th Additional District and Sessions Judge, Mahesana in Criminal Case No. 889 of 2010 and Criminal Appeal No. 124 of 2011, respectively, are hereby set aside. 11. Resultantly, this revision application is allowed. The judgment and order dated 28.09.2011 and 25.06.2015 passed by the learned Additional Chief Judicial Magistrate and learned 6th Additional District and Sessions Judge, Mahesana in Criminal Case No. 889 of 2010 and Criminal Appeal No. 124 of 2011, respectively, are hereby set aside. The applicant is acquitted from the charges punishable section 138 of the Negotiable Instruments Act, 1881 as well as the judgment and order of both the courts below is hereby quashed and set aside.