NEUTRAL CITATION
R/CR.MA/13240/2021 ORDER DATED: 31/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13240 of 2021
In R/CRIMINAL APPEAL NO. 1019 of 2021
With
R/CRIMINAL APPEAL NO. 1019 of 2021
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DIPSANG KALUBHAI GOHIL
Versus
STATE OF GUJARAT
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Appearance:
MR NILESH I JANI(3558) for the Applicant(s) No. 1
MR ALINAVAZ A VAKIL(10191) 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 : 31/08/2023
ORAL ORDER
1. Heard Mr. Nilesh Jani, learned advocate for the applicant - original complainant and Mr. Alinawaz Vakil, learned advocate for the respondent No.2 - original accused.
2. This application is filed seeking leave to appeal against the judgment and order dated 03.06.2021 passed by the learned 2 nd Judicial Magistrate First Class, Mahuva, in Criminal Case No.244 of 2016. By the said judgment and order, the learned Magistrate has proceeded to record the acquittal of the present respondent - original accused for the offence under Section 138 of the Negotiable Instruments Act.
3. Learned advocate for the applicant has invited attention of this Court to the reasons assigned by the learned Magistrate while recording the impugned judgment and order of acquittal. He has Page 1 of 4 Downloaded on : Sun Sep 17 03:05:54 IST 2023 NEUTRAL CITATION R/CR.MA/13240/2021 ORDER DATED: 31/08/2023 undefined submitted that the learned Magistrate has failed to consider the fact that the respondent No.2 has admitted his signature on the cheque and it has been dishonoured for insufficient funds. In such circumstances, having noticed that the basic ingredients of Section 138 of the Negotiable Instruments Act being complied, the offence under Section 138 of the Negotiable Instruments Act is made out. Learned advocate has heavily relied upon the promissory note dated 05.08.2010 executed by the respondent No.2. It is submitted that apart from the aforesaid presumption, the cogent material in the form of promissory note has come on record to indicate that the cheque was issued towards legally enforceable debt. He, therefore, urged this Court to grant leave to appeal.
4. On the other hand, Mr. Vakil, learned advocate has vehemently objected to grant of leave to appeal. He has relied upon the order of the learned trial Court and has submitted that various infirmities have emerged on record during the course of cross-examination of the complainant. The respondent - original accused has been successful in bringing on record the major contradictions in the case put forward by the complainant as against what has been recorded during the cross-examination of the complainant. He has submitted that the case put forwarded by the complainant in the complaint is that the amount of Rs.7 Lakhs was borrowed by the accused for purchase of house, whereas in his cross-examination, the accused has failed to response the question as to whether any house is in existence in the name of the accused. The attention of this Court is invited to the FIR registered by the accused against the complainant, who appears to be a retired Mamlatdar. It is submitted that in fact, the complainant was facing charge of corruption and he was Page 2 of 4 Downloaded on : Sun Sep 17 03:05:54 IST 2023 NEUTRAL CITATION R/CR.MA/13240/2021 ORDER DATED: 31/08/2023 undefined suspended. In the compliant filed by the accused against the complainant, the charge-sheet has been filed and the complainant was released on bail in the aforesaid criminal case. He has heavily relied upon the cross-examination of the complainant, wherein it has transpired on record that the accused was not even present in Bhavnagar District during the aforesaid period of alleged transaction. In such circumstances, the very execution of the promissory note has been challenged in his cross-examination. Lastly, learned advocate has relied upon the fact that the basic requirement of provision of Section 138 of the Negotiable Instruments Act has not been complied with by the complainant. The attention of this Court is invited to the fact that even legal notice issued by the complainant has not been served upon the complainant, though acknowledgment slip has been placed on record vide Exhibit 11, however, the same has been controverted in cross-examination. He, therefore, objected to grant of leave to appeal.
5. Considering the arguments of the learned advocates appearing for the respective parties and having perused the impugned judgment and order, this Court finds that the arguable case is raised by the learned advocate for the applicant, which requires close reappreciation of the evidence, which has emerged on record before the trial Court. The application seeking leave to appeal requires consideration. Hence, this application seeking leave to appeal is granted. Rule is made absolute.
CRIMINAL APPEAL No.1019 of 2021:
ADMIT. Learned APP waives service of notice of admission Page 3 of 4 Downloaded on : Sun Sep 17 03:05:54 IST 2023 NEUTRAL CITATION R/CR.MA/13240/2021 ORDER DATED: 31/08/2023 undefined on behalf of the respondent No.1 - State and learned advocate Mr. Vakil waives service of notice of admission on behalf of the respondent No.2 - original accused.
Let R & P be called for.
(NISHA M. THAKORE,J) Y.N. VYAS Page 4 of 4 Downloaded on : Sun Sep 17 03:05:54 IST 2023