Zala Mahendrasinh Kesharisinh vs State Of Gujarat

Gujarat High Court

Zala Mahendrasinh Kesharisinh vs State Of Gujarat on 6 December, 2023

                                                                                 NEUTRAL CITATION




     R/CR.MA/9832/2022                            ORDER DATED: 06/12/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 9832 of
                             2022
             In R/CRIMINAL APPEAL NO. 1049 of 2022
                             With
               R/CRIMINAL APPEAL NO. 1049 of 2022
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                         ZALA MAHENDRASINH KESHARISINH
                                      Versus
                                STATE OF GUJARAT
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Appearance:
DR. HARDIK K RAVAL(6366) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MS VRUNDA SHAH APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
                  Date : 06/12/2023
                   ORAL ORDER

ORDER IN CRIMINAL MISC. APPLICATION:

1. This is an application by the applicant - original complainant under Section 378(4) of the Code of Criminal Procedure, 1973, seeking leave of this Court to present an appeal against the judgment and order of acquittal dated 31.03.2022 passed by the learned Judicial Magistrate First Class, Talod in Criminal Case No. 1821 of 2021.

2. Heard advocate Dr.Hardik Raval for the applicant and perused the impugned judgment and order of the trial Court.

3. Learned advocate Dr.Raval submits that the judgment and order passed by the learned trial Court is only on the ground that the cheque issued by the respondent was towards the discharge of liability of his son and therefore, there was no any legally enforceable debt qua the respondent - accused. The learned advocate drew the attention of this Court with regard to the decision rendered by the Hon'ble Apex Court in the case of I.C.D.S. Ltd v/s.

NEUTRAL CITATION R/CR.MA/9832/2022 ORDER DATED: 06/12/2023 undefined Beena Shabeer and others reported in (2002) 6 SCC 426 and relied upon paras 10 and 11 of the said decision, which are reproduced hereinbelow:-

"10. The language, however, has been rather specific as regards the intent of the legislature. The commencement of the Section stands with the words "Where any cheque". The above noted three words are of extreme significance, in particular, by reason of the user of the word "any" the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment.

11. The issue as regards the co-extensive liability of the guarantor and the principal debtor, in our view, is totally out of the purview of Section 138 of the Act, neither the same calls for any discussion therein. The language of the Statute depicts the intent of the law- makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act: 'Any cheque' and 'other liability' are the two key expressions which stands as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the Statute. Any contra interpretation would defeat the intent of the legislature. The High Court, it seems, got carried away by the issue of guarantee and guarantor's liability and thus has overlooked the true intent and purport of Section 138 of the Act. The judgments recorded in the order of the High Court do not have any relevance in the contextual facts and the same thus does not lend any assistance to the contentions raised by the respondents."

NEUTRAL CITATION R/CR.MA/9832/2022 ORDER DATED: 06/12/2023 undefined

4. The learned advocate submits that the word which was used in the provision i.e. (of any debts or other liability) includes the debt of the other person for which, the cheque was issued and signature was not disputed by the respondent - accused during the trial. The learned advocate submits that though the presumption, which is in favour of the complainant under Sections 118 and 139 of the Negotiable Instruments Act, 1881 was not rebutted, the learned trial Court had acquitted the respondent - accused from the charges and therefore, prayer is made to allow this application and to grant leave to prefer an appeal and to admit the appeal.

5. Considering the avernments made in the application and submissions made by the learned advocate appearing for the applicant, this Court finds that there is some arguable case in favour of the applicant, therefore, leave, as prayed for, is granted. This application is allowed.

ORDER IN CRIMINAL APPEAL:

1. The appeal is admitted. Learned A.P.P. Ms.Vrunda Shah waives service of notice of admission on behalf of respondent -

State.

2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees Five Thousand only) against the respondent - original accused.

3. Record and proceedings be called for from the concerned court. Registry is directed to list the Criminal Appeal in seriatim.

(M. K. THAKKER,J) Hitesh Page 3 of 3 Downloaded on : Wed Dec 06 20:51:24 IST 2023