R/CR.MA/6256/2019 ORDER DATED: 15/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6256 of 2019
With
R/CRIMINAL APPEAL NO. 622 of 2023
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PATEL RAVINDRABHAI CHHAGANBHAI
Versus
STATE OF GUJARAT
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Appearance:
HARSHADKUMAR D PANCHAL(9015) for the Applicant(s) No. 1
MR KUNAL S SHAH(5282) for the Respondent(s) No. 2
MR. RAJU N DESAI(7029) for the Respondent(s) No. 2
MR.H.K.PATEL, APP, for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 15/03/2023
ORAL ORDER
1. RULE. Learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent-state.
2. This application is filed by the applicant for Special Leave to Appeal against the judgment and order dated 15.02.2019 by the Judicial Magistrate First Class, Vadali in Criminal Case No.232 of 2017, by which the respondent-accused is acquitted of the offense under Section 138 of the Negotiable Instrument Act.
3. By an order dated 24.02.2020, this Court had called for the Records and Proceedings.
4. Learned advocate for the applicant submitted that the only ground for acquitting the respondent is the mention of a wrong branch on Page 1 of 3 Downloaded on : Thu Mar 16 20:43:13 IST 2023 R/CR.MA/6256/2019 ORDER DATED: 15/03/2023 which the cheque was drawn in the statutory demand notice. Learned advocate fort the applicant submitted that the cheque was issued in a compromise which was arrived at in a Lok Adalat pertaining to the previous case for dishonour of cheque. Learned advocate has drawn attention of this Court to the compromise documents to which the respondent accused was also a signatory and therefore, the cheque number as well as branch on which the cheque was drawn was mentioned by the respondent-accused in the document of compromise. Therefore, it appears that by relying upon the defense that the applicant in the statutory demand notice has not mentioned the correct branch on which the cheque was drawn, not only statutory notice, but the complaint itself is defective.
5. Learned advocate for the respondent submitted that the complaint was rightly dismissed as the Court had accepted the defense to the extent that not only the cheque in question, but three other cheques were in custody of the applicant which were misused.
6. Considering the fact that the respondent-accused was a signatory to the document of compromise and that compromise mentioned the cheque number and the branch on which the cheque was drawn by the respondent-accused himself, the respondent cannot be allowed to take advantage of his own wrong. It is also apparent that the Page 2 of 3 Downloaded on : Thu Mar 16 20:43:13 IST 2023 R/CR.MA/6256/2019 ORDER DATED: 15/03/2023 cheque as well as the details contained in the cheque are admitted and there was no defense taken by the respondent from the inception as he has not even replied to the statutory notice.
7. In view of the aforesaid, case is made out for grant of Special Leave to Appeal to prefer an appeal against the impugned judgment and order. Accordingly, present Criminal Misc. Application stands allowed. Rule is made absolute accordingly.
===================================== ORDER IN CRIMINAL APPEAL The Appeal is admitted.
Issue bailable warrant in the sum of Rs.5,000/- (Rupees Five Thousand only) against the respondent- original accused.
(A.Y. KOGJE, J) SIDDHARTH Page 3 of 3 Downloaded on : Thu Mar 16 20:43:13 IST 2023