Gujarat High Court
Gujarat State Co-Op. Agriculture And ... vs State Of Gujarat on 13 December, 2023
NEUTRAL CITATION
R/CR.MA/22054/2023 ORDER DATED: 13/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 22054
of 2023
In R/CRIMINAL APPEAL NO. 2744 of 2023
With
R/CRIMINAL APPEAL NO. 2744 of 2023
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GUJARAT STATE COOP. AGRICULTURE AND RURAL DEVELOPMENT
BANK LTD. THRO PATEL SENDHABHAI VALABHAI
Versus
STATE OF GUJARAT
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Appearance:
MR.AMIT R JOSHI(6682) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS DIVYANGNA JHALA, ADDL.PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 13/12/2023
ORAL ORDER
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 22054 of 2023
1. Learned advocate Mr.Amit Joshi submits that the disputed cheque was issued towards the payment of the loan of the father. The loan was taken against the hypothicaiton of the tractor and due to non-payment of the loan amount, the son came forward and issued the cheque for repayment of the dues of the father. Learned trial Court had acquitted the respondent-accused only on the ground that there was no any legally enforceable debt towards the respondent-accused for which the cheque Page 1 of 3 Downloaded on : Wed Dec 13 20:51:47 IST 2023 NEUTRAL CITATION R/CR.MA/22054/2023 ORDER DATED: 13/12/2023 undefined was issued. Learned advocate Mr.Joshi has relied on the provisions of section 138 of the Negotiable Instruments Act, 1886 and specifically marking on the sentence mentioned that if the cheque was issued for discharge of any debt or other liability and the cheque was returned then the person can be prosecuted under Section 138 of the Negotiable Instruments Act, 1886. Learned advocate Mr.Joshi has relied on the decision rendered by the Apex Court in case of in the case of I.C.D.S. Ltd v/s. 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 Page 2 of 3 Downloaded on : Wed Dec 13 20:51:47 IST 2023 NEUTRAL CITATION R/CR.MA/22054/2023 ORDER DATED: 13/12/2023 undefined 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."
2. In view of above submissions, this Court deems it fit to allow this application. Hence, application seeking leave to prefer an appeal is allowed.
ORDER IN R/CRIMINAL APPEAL NO. 2744 of 2023
1. The appeal is admitted. Learned APP 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. Appeal be listed in seriatim.
(M. K. THAKKER,J) M.M.MIRZA Page 3 of 3 Downloaded on : Wed Dec 13 20:51:47 IST 2023