NEUTRAL CITATION
R/CR.MA/15795/2022 ORDER DATED: 28/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15795 of 2022
In R/CRIMINAL APPEAL NO. 1695 of 2022
With
R/CRIMINAL APPEAL NO. 1695 of 2022
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IMTIYAZ AHEMAD SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
MS JK HINGORANI(2491) for the Applicant(s) No. 1
MR SAMIR AFZAL KHAN(3733) for the Respondent(s) No. 2
Ms. Monali Bhatt, Addl. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 28/08/2023
ORAL ORDER
1.0. Heard Ms. JK Hingorani, learned advocate for the applicant, Mr. Samir Afzalkhan Pathan, learned advocate for the respondent no.2 and Ms. Monali Bhatt, learned Additional Public Prosecutor who has appeared on behalf of the respondent State.
2.0. This application is filed under Section 378(4) of the Code of Criminal Procedure seeking leave against the judgment and order dated 29.12.2021 passed by the learned 3 rd Additional Chief Judicial Magistrate, Navsari in Criminal Case No.1482 of 2019. By the said judgment and order, the learned Magistrate has proceeded to record the acquittal of respondent no.2- original accused for the offences punishable under Section 138 of the Negotiable Instruments Act.
3.0. It is the case of the original complainant that the complainant on friendly terms had advanced an amount of Rs.2,13,000/- as explained in the para 2 of the impugned Page 1 of 6 Downloaded on : Sun Sep 17 02:47:14 IST 2023 NEUTRAL CITATION R/CR.MA/15795/2022 ORDER DATED: 28/08/2023 undefined judgment and order by way of cheque and cash during the period from 5.1.2017 to 15.12.2017 to the respondent accused. It is further contended in the complaint that the accused had assured the complainant to make repayment of the aforesaid amount of Rs.2,13,000/- by October 2018 and the post dated cheque bearing dated 11.2.2019 was handed over to the complainant on 23.10.2018 by the respondent-accused for an amount of Rs.2,13,000/-. The aforesaid cheque is contended to be presented for realization on 11.2.2019. However, on the same day, the cheque was returned with endorsement of "funds insufficient". This had led to issuance of legal notice under Section 138 of the Negotiable Instruments Act upon the respondent accused, which was duly served through RPAD on 21.2.2019. Since the accused failed to make repayment of the aforesaid amount within a period of 15 days and having not complied with the legal notice, the complainant was constrained to approach the Court of learned Magistrate by lodging the aforesaid complaint under Section 138 of the Negotiable Instruments Act.
4.0. Initially, the learned Magistrate upon verification of the complainant had proceeded to issue summons upon the accused, which was duly served and plea of the accused was recorded vide Exh.8 and having pleaded not guilty, the learned Magistrate has proceeded for summary trial. The complainant has entered into witness box and his evidence has been recorded vide Exh.4. The complainant has also examined two witnesses who are officers attached to the concerned bank whose evidence has come on record vide Exhs. 22 and 26. Apart from the oral evidence, the complainant has also led various documentary Page 2 of 6 Downloaded on : Sun Sep 17 02:47:14 IST 2023 NEUTRAL CITATION R/CR.MA/15795/2022 ORDER DATED: 28/08/2023 undefined evidence including bank statement of the complainant vide Exh. 18, 19, 24 and 29. It is further submitted by the learned advocate for the applicant that the only defence which has been raised on the record by the accused was with regard to misuse of blank cheque. In fact, it is contended that the complainant has lodged the false claim, no amount was due, as contended in the original complaint. The accused has also brought on record the documentary evidence, which is a notice dated 12.07.2018 addressed by the complainant to the accused vide Exh.20 which has come on record during the course of examination of cross examination of the complainant.
5.0. It is further submitted by the learned advocate for the applicant that though sufficient material has been brought on record to establish the offence punishable under Section 138 of the Negotiable Instruments Act, the learned Magistrate has proceeded to record the order of acquittal on irrelevant considerations. The attention of this Court is invited to the reasons assigned by the learned Magistrate while recording order of acquittal. It is further submitted by the learned advocate for the applicant that noticing the incorrect details mentioned by the learned advocate in the legal notice dated 12.07.2018, as relied upon by the accused, the advocate on record was immediately relieved. In such circumstances, the trial Court ought to have believed the case put forward by the complainant where no dispute was raised with regard to the signature on the disputed cheque. Learned advocate has relied upon the statutory provisions, more particularly, Sections 118 and 139 of the Negotiable Instruments Act to submit that the statutory presumption would arise in favour of the original complainant and in absence of any rebuttal Page 3 of 6 Downloaded on : Sun Sep 17 02:47:14 IST 2023 NEUTRAL CITATION R/CR.MA/15795/2022 ORDER DATED: 28/08/2023 undefined of such presumption, the offence punishable under Section 138 of the Negotiable Instruments Act was made out. She, therefore, urge this Court to grant leave to appeal.
6.0. Learned advocate on record for respondent has vehemently objected to grant of leave to appeal. The attention of this Court is invited to the suppression of materials fact, which has transpired during the course of trial. The reliance is placed upon the legal notice dated 12.07.2018 which has been brought on record by the accused himself vide Exh.20. By placing reliance upon the aforesaid documents, the learned advocate has submitted that in fact the trial Court had noticed the contradictions in the claim put forward by the complainant in its original complaint as against the averments made in the legal notice. It is further submitted that on bare reading of the averments made in the legal notice, one can notice that the demand was raised with regard to advancement of amount of Rs.1,50,000/- to the accused with charging of interest at the rate of 2%, whereas, in the complaint the case put forward by the complainant is that an amount of Rs.2,13,000/- was handed over to the accused on different occasions. He further submitted that the complainant had in fact made alteration in the details of bank statement which has further been corroborated from the evidence of the Bank Officer who has been examined as witness by the original complainant. By referring to the aforesaid circumstances, learned advocate submitted that no error can be found with the order of the trial Court by shifting burden upon the original complainant to prove the existence of legally enforceable debt and claim of Rs.2,13,000/- as contended in the original complaint. The learned advocate relied upon the Page 4 of 6 Downloaded on : Sun Sep 17 02:47:14 IST 2023 NEUTRAL CITATION R/CR.MA/15795/2022 ORDER DATED: 28/08/2023 undefined reasons assigned by the learned Magistrate while passing the impugned order of acquittal and has urged this Court not to entertain the appeal and to refuse the grant of leave to appeal.
7.0. Having heard the learned advocates for the respective parties and having perused the impugned order as well as copy of legal notice which has been placed on record by the learned advocate for the respondent, the Court notices that initially the claim put forward by the complainant was advancement of an amount of Rs.2,13,000/- as described in the tabular details reproduced in the impugned order right from the date of 5.1.2017 to 15.12.2017. The legal notice dated 12.07.2018 has been placed on record by the learned advocate for the accused. It is forming part of record and is admitted as evidence vide Exh.20. On bare reading of the averments of the aforesaid legal notice as well as cross examination of the complainant, major contradictions has been noted by this Court against the claim of an amount of Rs.1,50,000/- as contended in the legal notice dated 12.07.2018 with charging of interest at the rate of 2% as compared to the amount of Rs.2,13,000/-, as contended in the original compliant. In such circumstances, the very existence of the legally enforceable debt has arose for consideration, the question arises as to whether post dated cheque was actually handed over by the original complainant for an amount of Rs.2,13,000/-. Thus, it was for the original complainant to prove his case beyond reasonable doubt. The Court cannot ignore the circumstances which has emerged on record as recorded by the learned Magistrate in the impugned order upon appreciation of the evidence of the two witnesses who are Bank Officers of the concerned Bank. The appreciation of the evidence of the Page 5 of 6 Downloaded on : Sun Sep 17 02:47:14 IST 2023 NEUTRAL CITATION R/CR.MA/15795/2022 ORDER DATED: 28/08/2023 undefined complainant's witness Exhs. 20 and 26 as compared to the bank statement which has been placed on record vide Exhs. 18 and 19, the trial Court was convinced with the alteration done by the complainant to show that the amount shown in above statements Exhs. 18 & 19 have been given to the accused. Noticing the aforesaid conduct of the original complainant, the Court has more reason to believe the defence raised by the respondent-accused with regard to misuse of blank cheque. In the opinion of this Court, no case is made out to grant leave to appeal. Hence, no error can be found with the approach of the learned Magistrate in not fixing the criminal liability upon the respondent accused in absence of case being proved by the original complainant beyond the reasonable doubt. Hence, this application seeking leave to appeal is hereby refused and stands rejected. Notice is discharged.
Order in Criminal Appeal No.1695 of 2022 In view of the rejection of application for grant of special leave to appeal, present Criminal Appeal also stands rejected.
(NISHA M. THAKORE,J) KAUSHIK J. RATHOD Page 6 of 6 Downloaded on : Sun Sep 17 02:47:14 IST 2023