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2025 DIGILAW 118 (GUJ)

Shaitul Shaileshbhai Patel v. State of Gujarat

2025-02-13

S.V.PINTO

body2025
ORDER : (S. V. PINTO, J.) 1. The present application is filed by the applicant – original complainant under Section 419(4) Bharatiya Nagarik Suraksha Sanhita 2023, seeking leave to appeal against the judgement and order dated 12.08.2024 passed by the learned 10 th Additional Session Judge, Surat in Criminal Appeal No. 479 of 2022, whereby, the Sessions Court was pleased to reverse the conviction of the respondent no. 2 – original accused for the offence punishable under Section 138 of the Negotiable Instrument Act , 1881 (hereinafter referred to “the Act” for short) recorded by the learned 16 th Additional Chief Judicial Magistrate, Surat (hereinafter referred to as the “learned Trial Court”) by a judgement and order dated 24.08.2022 in Criminal Case No. 17177 of 2018. 1.1 The respondent no. 2 is hereinafter referred to as the accused as he stood in the original case for the sake of convenience, clarity and brevity. 2. The brief facts culled from the memo of the application as well the judgement and order are as under: 2.1 The complainant is doing the business of glass, windows, doors, etc. in the name of Om Sai Glass. The accused is the Managing Trustee of Dakshina Murthy Vidyalaya and came in contact with each other through the brother of the accused – Gopal Laljiwala. The accused asked some money for development of the school and an amount of Rs.6 lakhs was lent in January 2017, Rs.6 lakhs in February 2017 and the remaining Rs.5 lakhs in March 2017. In all, an amount of Rs.17 lakhs was given to the accused towards which the accused issued cheque no. 000055 dated 29.06.2017 for Rs.9 lakhs of his account with HDFC Bank Limited, Puna Khambhariya Branch, Surat. The cheque was deposited by the complainant in his account with Axis Bank Branch, Surat but the cheque returned unpaid on 03.10.2017 with the endorsement “Instrument Outdated / State”. The accused once again issued cheque no. 000059 dated 10.11.2017 for Rs.16,42,000/- of his account with HDFC Bank Limited, Puna Khambhariya Branch, Surat and the cheque was deposited by the applicant in his account with Axis Bank Surat Branch but the cheque was dishonoured on 09.02.2018 with the endorsement “Insufficient Funds”. The accused once again issued cheque no. 000059 dated 10.11.2017 for Rs.16,42,000/- of his account with HDFC Bank Limited, Puna Khambhariya Branch, Surat and the cheque was deposited by the applicant in his account with Axis Bank Surat Branch but the cheque was dishonoured on 09.02.2018 with the endorsement “Insufficient Funds”. The applicant gave the statutory demand notice on 10.03.2018 which was duly served to the accused on 12.03.2018 but the accused did not repay the amount and hence, the applicant filed the complaint under Section 138 of NI Act before the Chief Judicial Magistrate, Surat. 2.2 The accused was duly served with the summons and the accused appeared before the learned Trial Court and his plea was recorded and after the evidence of the applicant was taken on record, the further statement of the accused under Section 313 of the Code of Criminal Procedure , 1973 was recorded. After the arguments of both learned advocates for the parties, the learned Trial Court was pleased to convict the accused and sentenced him to undergo simple imprisonment for one year and fine of Rs.32,84,000/- and in default, further simple imprisonment for six months for the offence punishable under Section 138 of the Ni Act. The learned Trial Court was pleased to further order that the amount of fine be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure , 1973. 3. Being aggrieved and dissatisfied with the judgement and order of conviction, the accused filed Criminal Appeal No. 479 of 2022 before the Sessions Court, Surat and after hearing the learned advocates for both the parties, the learned 10 th Additional Session Judge, Surat was pleased to allow the appeal and set aside the judgement and order of conviction passed by the learned 16 th Additional Chief Judicial Magistrate, Surat in Criminal Case No. 17177 of 2018 and acquit accused from the offence under Section 138 of the NI Act. 4. 4. Being aggrieved and dissatisfied with the judgement and order of the learned 10 th Additional Session Judge, Surat, the applicant – original complainant has filed the present application seeking leave to appeal mainly stating that the learned Sessions Court has failed to appreciate the evidence of the applicant on record and has recorded that the accused did not cross-examine the complainant and hence, the case of the complainant remained unchallenged but in those circumstances, the learned Sessions Court ought to have remanded the matter to the learned Trial Court instead of reversing the conviction. The accused did not set up any case by sending a reply notice to the statutory demand notice sent by the applicant and hence, it was not expected of the applicant to lead evidence to show that he had the financial capacity and the issue regarding payment allegedly made by the accused was not relevant for deciding the dispute between the parties. The cash transaction between the parties is on record and the accused did not respond to the notice and did not call upon the applicant to produce the income tax returns but the learned Sessions Court has committed an error in observing that the accused has challenged the payment of the cheque amount since the beginning. The grounds for acquittal as mentioned by the learned Sessions Court are not proper and the applicant has a good case on merits and hence, the leave to appeal must be granted. 5. Learned advocate Mr. Nirad Buch for learned advocate Mr. M.J. Mehta for the applicant and learned APP Mr Bhargav for the respondent state. 6. Learned advocate Mr. Nirad Buch has taken this court through both the judgements passed by the learned Trial Court as well as the learned Sessions Court and submitted that the learned Trial Court has appreciated the evidence in light of the judgements of the Apex Court and rightly convicted the accused as the facts of the complaint had remained unchallenged and the statutory presumption in favour of the applicant was also unrebutted. From the evidence of the applicant it was proved that the cheque was issued by the accused in favour of the applicant in discharge of his legally enforceable debt. The learned Sessions Court has not considered all these aspects and the applicant has a good case merits and leave to appeal must be granted. 7. Learned APP Mr. From the evidence of the applicant it was proved that the cheque was issued by the accused in favour of the applicant in discharge of his legally enforceable debt. The learned Sessions Court has not considered all these aspects and the applicant has a good case merits and leave to appeal must be granted. 7. Learned APP Mr. Bhargav Pandya for the respondent State has submitted that the learned Trial Court has considered all the documents produced by the applicant and has also considered the evidence and has passed the impugned order of acquittal considering the settled principles of law and hence, the leave to appeal may not be granted. 8. On perusal of the judgement and order passed by the learned 16 th Additional Chief Judicial Magistrate, Surat, it appears that the learned Trial Court has concluded that the applicant had proved that the cheque was issued by the accused in favour of the applicant in discharge of his legally unenforceable debt and all the ingredients for making out a case under Section 138 of the NI Act were complied with, whereas, the learned Sessions Court on the same evidence has come to a conclusion that the presumption raised under Section 139 of NI Act has been rebutted by the accused by raising a probable defence by leading oral and documentary evidence on the basis of preponderance of probability and both the Courts have appreciated the evidence in a separate manner. The issue requires consideration and leave to appeal is required to be granted. 9. In the peculiar facts and circumstances of the case in the considered opinion of this Court the application deserves to be considered. Consequently, the application for leave to appeal is granted and disposed off accordingly.