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2024 DIGILAW 837 (GUJ)

Yogendrasinh Pachubha Jadeja v. State Of Gujarat

2024-04-09

M.K.THAKKER

body2024
ORDER : ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 18020 of 2023 1. This application is filed seeking leave to prefer an appeal under section 378 (4) of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ referred hereinafter) challenging the judgment and order of the acquittal dated 05.08.2023 passed in Criminal Case No.31315 of 2019 by the learned Chief Judicial Magistrate, N.I.Act Court No.37, Ahmedabad. 2. It is the case of the complainant that the complainant has given the financial facility to purchase the auto-rickshaw bearing RTO Registration No.GJ-04-W-9397. To repay the aforesaid loan amount, the cheque bearing No.00001 of Rs.1,41,598/- dated 07.12.2018 was issued, which was dishonored on depositing with the Bank and therefore, after following the procedure under the Negotiable Instruments Act, 1886 (‘the N.I. Act’ referred hereinafter), a private complaint came to be filed. 3. Learned trial Court after considering the evidence on record and arguments advanced by the learned advocates for the respective parties came to the conclusion that the complainant fails to establish the legally enforceable debt against the respondent- accused and therefore, the respondent-accused had acquitted from the charges punishable under Section 138 of the N.I.Act, which is the subject matter of challenge before this Court. 4. Heard the learned advocate Mr.Aditya Gundecha for the applicant-original complainant. 5. Learned advocate Mr.Aditya Gundecha submits that the learned trial Court has given much weightage to the minor discrepancies with regard to the statement made in the cross examination that how much amount is yet to be paid, the respondent-accused is not ready to produce that details before the court. 5.1. Learned advocate Mr.Gundecha submits that as the statement of account was already produced before the learned trial Court below Exhibit 19 which reflects the whole transaction, the statement with regard to how much amount is paid does not require to be produced separately however, this statement was given much importance while acquitting the respondent-accused. 5.2. 5.1. Learned advocate Mr.Gundecha submits that as the statement of account was already produced before the learned trial Court below Exhibit 19 which reflects the whole transaction, the statement with regard to how much amount is paid does not require to be produced separately however, this statement was given much importance while acquitting the respondent-accused. 5.2. Learned advocate Mr.Gundecha submits that the minor discrepancies, like as per the complaint the loan of Rs.1,45,000/- was given and as per the evidence of the accused Rs.1,41,000/- was the amount for which the loan was obtained, was given much weightage and the receipts which have been produced showing the deposits of the installment amount was believed without considering the fact that even as per that receipt after deducting the amount which is shown in the receipt, the amount which is due and payable is of Rs.1,41,598/-. However, the learned trial Court did not believe the case on the ground that as per the admission of the complainant, the auto-rickshaw for which the loan was given was seized in the year 2016 and was auctioned thereafter. 5.3. Learned advocate Mr.Gundecha submits that Exhibit 19 statement also reflects that the amount which comes from the sale proceeds of the vehicle and on deducting that amount also as per the statement below Exhibit 19, the amount is still due and for which the cheque was issued. 5.4. Learned advocate Mr.Gundecha submits that though the presumption which is in favour of the complainant was not rebutted by the respondent-accused and merely by pleading that amount is paid and the vehicle is seized, learned trial Court has committed an error in disbelieving the case of the complainant and acquitting the respondent-accused from the charges. 5.5. In view of above submissions, the learned advocate Mr.Gundecha prays to grant the leave to prefer an appeal against the impugned judgment and order of the acquittal. 6. This Court has considered the arguments as well as the record and proceedings from which it transpires that the loan was sanctioned for an amount of Rs.1,41,000/- in the year 2014 to purchase the auto-rickshaw bearing Registration No.GH-04-W-9397 as per the loan agreement, the respondent-accused had provided six blank cheques to the complainant and has also produced the receipts showing that the total amount of Rs.1,02,760/- has been repaid through different installments. 6.1. 6.1. From the evidence of the accused it also comes on the record that the auto-rickshaw was repossessed by the complainant-finance company without issuing any notice and was sold to another person for the amount of Rs.1,00,000/-. When the complainant was asked to produce the document with regard to the auction procedure, during cross examination he denied to produce the same. The statement of account, which was produced is showing that sale proceeds of Rs.35,000/- was deducted from the loan amount. Though the installment which is stated to have been paid Rs.1,02,760/- as per the statement below Exhibit 19, the said amount is shown as Rs.97,760/-. 7. This Court is of the view that adverse inference is required to be drawn against the complainant as on demanding the document with regard to the auction of the auto-rickshaw, complainant withheld the document and, which suggests that the complainant has not come with the clear facts before the Court, and defence regarding reselling of the vehicle for an amount of Rs.1 Lakh appears to be probable. 8. One more aspect for which this Court is not inclined to grant leave is that in the year 2016, the auto-rickshaw for which the loan was given was already repossessed and it was auctioned. As per the judgment rendered by the Kerala High Court in the case of Sudha Beevi vs. State of Kerala where it was held that once the finance company exercised option to seize the vehicle, the post dated cheque obtained from the hirer cannot be presented for the encashment after the seizure. If any amount is still due then the finance company would have the remedy to recover the balance amount by way of filing the suit for recovery. Relevant observations made is reproduced herein below: “8.1 ...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. 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. - 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…..” 9. In view of the same, this Court is of the view that there is no any illegality, impropriety or perversity made by the learned trial Court while acquitting the respondent- accused and therefore, no interference is required. 10. Hence, leave which is prayed to prefer an appeal is declined. Application for seeking leave to appeal is dismissed. ORDER IN F/CRIMINAL APPEAL NO. 36400 of 2023 In view of the order passed in application for seeking leave to prefer an appeal, this appeal is dismissed.