NEUTRAL CITATION
R/CR.MA/7313/2022 ORDER DATED: 19/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7313 of 2022
In R/CRIMINAL APPEAL NO. 781 of 2022
With
R/CRIMINAL APPEAL NO. 781 of 2022
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UTTAR GUJARAT VIJ COMPANY LIMITED THROUGH DEPUTY ENGINEER
Versus
STATE OF GUJARAT
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Appearance:
MR PREMAL R JOSHI(1327) for the Applicant(s) No. 1
MR RAJESH M CHAUHAN(2470) for the Respondent(s) No. 2,3
MS. C.M. SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 19/08/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION NO. 7313 of 2022
1. Heard Mr. Premal R. Joshi, learned advocate on record for the applicant-original complainant, Mr. Rajesh Chauhan, learned advocate on record for the respondent Nos.2 and 3-original accused and Ms. C.M. Shah, learned APP appearing for the respondent-State.
2. Rule returnable forthwith. Learned advocate Mr. Rajesh Chauhan waives service of notice of rule for and on behalf of respondent Nos.2 and 3-original accused and learned APP Ms. C.M. Shah waives service of notice of rule on behalf of respondent-State.
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3. This application is filed under Section 378(4) of Cr.P.C. seeking leave to file appeal against the judgment and order dated 31.12.2021 passed by learned 5th Additional Chief Judicial Magistrate, Gandhinagar in Criminal Case No.6965 of 2019. By the said judgment and order, the learned Magistrate has proceeded to record the acquittal of respondents- original accused for the offence punishable under Section 138 of the N.I. Act.
4. Learned advocate for the applicant has invited attention of this Court to the reasons assigned by the learned Magistrate while recording the impugned order of acquittal. At the outset, learned advocate for the applicant has submitted that the learned Magistrate has proceeded to dismiss the complaint mainly on two grounds. The first ground, which has been taken into consideration by the learned Magistrate, is with regard to filing of complaint beyond the prescribed period of limitation.
4.1 Learned advocate for the applicant has further invited attention of this Court to the observations of the learned Magistrate, more particularly, in para No.13.2 of the impugned order and has submitted that after noticing the various relevant dates, the learned Magistrate has recorded that the complaint was filed on 15.11.2016, Page 2 of 5 Downloaded on : Sun Sep 17 01:49:59 IST 2023 NEUTRAL CITATION R/CR.MA/7313/2022 ORDER DATED: 19/08/2023 undefined whereas the complaint was actually registered on 09.11.2016. The aforesaid fact is borne out from the cause title of the impugned order. He has submitted that in fact, the disputed cheque was issued on 13.08.2016, which got dishonoured on 17.08.2016. The legal notice, which is brought on record vide Exh.16 and the copy of the same has been produced on record in the present application at page No.35. According to him, the legal notice was issued on 30.08.2016, which is within the prescribed period of 30 days of dishonour of cheque. It is further submitted that the aforesaid demand notice was duly served on accused on 28.09.2016 and the period of 15 days as stipulated in the legal notice got over on 13.10.2016 and the period of one month, thereafter, as per Section 142 of the N.I. Act got over on 12.11.2016, whereas the present complaint has been filed on 09.11.2016. Thus, it is submitted that the learned Magistrate committed serious error in deciding the aforesaid issue.
4.2 The second ground, which has been taken into consideration by the learned Magistrate, is that the legal notice was not issued within the prescribed period of limitation. Learned advocate for the applicant has relied upon the letter dated 26.09.2016, which is produced at page No.43 to contend that in fact, the legal notice was addressed to the respondent-accused on 30.08.2016. Learned Page 3 of 5 Downloaded on : Sun Sep 17 01:49:59 IST 2023 NEUTRAL CITATION R/CR.MA/7313/2022 ORDER DATED: 19/08/2023 undefined advocate for the applicant has also drawn attention of this Court to Page No.44, which is copy of the track report available on the site of the Postal Department, to submit that the consignment was actually delivered to the respondent-accused on 28.09.2016. By making the aforesaid submissions, he therefore, urged this Court to grant leave to appeal.
5. On the other hand, learned advocate appearing for the respondents-accused has objected to grant of present application leave to appeal. He has submitted that upon appreciation of the evidence, which has come on record, no error has been committed by the learned Magistrate in dismissing the complaint. According to him, the learned Magistrate has given valid reasons. He therefore, urged this Court to dismiss the present application.
6. Having heard the learned advocates appearing for the respective parties and having perused the impugned order as well as the documents, prima facie, the court notices that the track report, which has been placed on record, goes to indicate that consignment was booked on 22.09.2016, whereas the legal notice, which is placed on record at page No.40 claims to have been issued on 30.08.2016. The court notices discrepancy in the issuance of date, if the track Page 4 of 5 Downloaded on : Sun Sep 17 01:49:59 IST 2023 NEUTRAL CITATION R/CR.MA/7313/2022 ORDER DATED: 19/08/2023 undefined report is to be believed, the question which falls for consideration of this Court is the compliance of mandatory provision of Section 138(b) of the N.I. Act being fulfilled or not. Learned advocate for the respondent was called upon as to whether any question with regard to the aforesaid fact was raised during the cross-examination of the complainant. The learned advocate for the respondent has failed to respond in absence of the record and proceedings. At this stage, the matter requires consideration and an arguable point is raised, which requires to be examined closely upon appreciation of the record and proceedings. Hence, the present application seeking leave to appeal is hereby granted. Rule is made absolute.
ORDER IN R/CRIMINAL APPEAL NO. 781 of 2022
1. Admit.
2. Learned advocate Mr. Rajesh Chauhan waives service of notice of admission for and on behalf of respondent Nos.2 and 3-original accused and learned APP Ms. C.M. Shah waives service of notice of admission for on behalf of respondent-State.
3. The appeal is expedited. Registry is hereby directed to call for Record & Proceedings forthwith.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 5 of 5 Downloaded on : Sun Sep 17 01:49:59 IST 2023