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2025 DIGILAW 223 (GUJ)

Bakulaben Harshadbhai Raval v. State of Gujarat

2025-03-06

S.V.PINTO

body2025
ORDER : 1. The present application is filed by the applicant-original complainant under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short “BNSS”) seeking leave to file an appeal against the judgment and order dated 16.10.2024 passed by the learned Chief Judicial Magistrate, Anand (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 4028 of 2018, whereby the respondent No. 2 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N I Act”). 1.1 The respondent No. 2 is 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 out from the memo of the present application as well as the impugned judgment and order and paper book filed by the applicant are as under: 2.1 The complainant filed a complaint against the accused under Section 138 of the Act, mainly contending that the accused had taken a loan of amount of Rs.20,00,000/- in cash and the accused had issued twenty cheques for the amount of Rs.1,00,000/- each including one cheque No.561096 dated 14.07.2018 from the account of the accused with The Vallabh Vidhyanagar Commercial Cooperative Bank, Vidhyanagar Branch. The complainant deposited the cheque in her bank and the cheque was dishonored and the reason mentioned in the return memo dated 18.07.2018 was “Payment Stop By Drawer”. The complainant sent the statutory demand notice to the accused on 26.07.2018 which was duly served against which an evasive reply was given and no payment was made and hence the complainant filed a criminal complaint before the Court of the Chief Judicial Magistrate, Anand under Section 138 of the N I Act, 1881 which was registered as Criminal Case No. 4028 of 2018. 2.2 The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded at Exhibit 08 and the evidence of the complainant was taken on record. The complainant and four other witnesses were examined on oath and 14 documentary evidences were produced in support of her case and after the closing pursis was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The complainant and four other witnesses were examined on oath and 14 documentary evidences were produced in support of her case and after the closing pursis was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused denied all the evidence and stated that false case has been filed against him and refused to step into the witness box or examine witnesses and after the arguments of the learned advocates for both the parties were heard, by the impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the NI Act. 3. Being aggrieved and dissatisfied with the same, the applicant has preferred the present application seeking leave to appeal mainly stating that the learned Trial Court has not properly interpreted the evidence and has misread the evidence and the impugned judgment is perverse, erroneous and contrary to law. 4. Heard learned advocate Mr. Hiren S. Somaiya appearing for the applicant, learned APP Mr. Bhargav Pandya for the respondent – State. 5. Learned Advocate Mr. Hiren S. Somaiya for the applicant submits that the learned Trial Court has not appreciated that the applicant has successfully established that the cheque in question was issued by the accused from the bank account maintained by him. The original complainant has proved that the cheque was written by the accused and it was dishonoured and as the original complainant is the holder in due course of the cheque in question the statutory presumption under Section 139 of the N I Act is to be drawn in favour of the original complainant. The learned Trial Court has not appreciated the provisions of Section 118 and 138 of the N I Act in proper perspective. The oral contract is not negated by the accused and the fact of the amount paid by the original complainant to the accused is also not negated, but the learned Trial Court has disbelieved the same. The accused had failed to rebut the presumption and hence the judgement and order of acquittal is bad in law and the leave to appeal must be granted. 6. Learned APP Mr. The accused had failed to rebut the presumption and hence the judgement and order of acquittal is bad in law and the leave to appeal must be granted. 6. Learned APP Mr. Bhargav Pandya for the respondent-State has submitted that the learned Trial Court has appreciated all the evidence in detail in light of the citations referred to in the judgement and has passed the impugned judgement and order of acquittal which is proper and no interference is required and hence the application for leave to appeal must be rejected. 7. Considering the submissions of learned advocate for the applicant as also the impugned judgement and order and the documents produced by the applicant in the original case the complainant has been examined at exhibit 6 and during the cross-examination it has come on record that the husband of the complainant had filed a criminal case in the Vidyanagar Police Station against the accused and the accused had also filed a complaint against the complainant, her husband Harshadbhai Raval, Akshitaben Choksi, Sajanbhai Bharwad and Kavabhai Prajapati and all their statements were recorded by the police. There is an admission that there was a financial dealing with the accused in the year 2017. During the cross-examination the accused has also raised the defence that the accused had entered into an agreement to purchase the house of the complainant which is situated at Kalikundnagar, Govardhan Park, Vidhyanagar and the same fact is stated in the reply to the notice given by the accused at exhibit 16. It is the case of the accused that the cheques were given as he wanted to purchase the house worth Rs. 22,00,000/- and a loan would have to be taken for which the husband of the complainant had told the accused to give 20 cheques and the accused had also given an amount of Rs.70,000/- and the twenty cheques to the husband of the complainant. In the notice it is also stated that the accused filed a complaint on 21.04.2018 in the Vidyanagar Police Station as the cheques were taken by fraud but the copy of the complaint has not been produced on record. Moreover there is no evidence as to why the cheques were not recovered by the Investigating Officer in that case. In the notice it is also stated that the accused filed a complaint on 21.04.2018 in the Vidyanagar Police Station as the cheques were taken by fraud but the copy of the complaint has not been produced on record. Moreover there is no evidence as to why the cheques were not recovered by the Investigating Officer in that case. That even if the case of the accused is that the police complaint regarding the cheques was filed on 21.04.2018 the cheque in question was deposited by the complainant on 14.07.2018. The complainant has also examined witness Chayaben Manojbhai and she has produced the copy of her bank statement and prima facie it appears that the learned Trial Court has not appreciated the oral and documentary evidences produced by the complainant in proper perspective and the application seeking leave to appeal requires consideration and consequently, the same is allowed.