NEUTRAL CITATION
R/CR.MA/7260/2023 ORDER DATED: 11/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 7260 of
2023
In R/CRIMINAL APPEAL NO. 977 of 2023
With
R/CRIMINAL APPEAL NO. 977 of 2023
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NARESHBHAI VASHRAMBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR PARESH A. PATEL(5456) for the Applicant(s) No. 1
KHUSHI P JADAV(7351) for the Respondent(s) No. 2,3,4
MR ROHANKUMAR M GAUSWAMI(13050) for the Respondent(s) No. 2,3,4
MS DIVYAGNA JHALA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 11/10/2023
COMMON ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION:-
1. This is an application filed by the applicant - original complainant seeking leave to prefer an appeal under Section 378 of the Code of Criminal Procedure, 1973, challenging the judgment and order dated 19.11.2022 passed by the learned 2nd Additional Senior Civil Judge, Palanpur, District Banaskantha in Criminal Case No.1159 of 2018, by which, the learned trial Court has exercised the power under Section- Page 1 of 9 Downloaded on : Thu Oct 12 20:46:01 IST 2023
NEUTRAL CITATION R/CR.MA/7260/2023 ORDER DATED: 11/10/2023 undefined 245(2) of the Cr.P.C. and discharged the respondent -
accused from the charges levelled against them.
2. It is the case of the complainant that respondent - accused nos.2 and 3 are the son of the accused no.1 and all are the relatives of the complainant. Before 05 years, for the purpose of construction of their house, the complainant had advanced the loan of Rs.10 lakh to the respondent accused. The amount of the loan was paid by the complainant to the accused through the different cheque, which was encashed by the respondent no.3. At the time of taking loan, an assurance was given to repay the same within period of one year and an undertaking was also given on 19.03.2013, however, the respondents - accused did not abide by said promise and failed to make the payment to the complainant. On demanding the money, three different cheques were issued in favour of the complainant of Dena Bank, Palanpur Branch, which was dishonoured with endorsement of 'insufficient fund'. Therefore, three different complaints came to be filed by the complainant being Criminal Case Nos.1782 of 2015; 1857 of 2015 and 1903 of 2015. At the end of the trial, the accused Page 2 of 9 Downloaded on : Thu Oct 12 20:46:01 IST 2023 NEUTRAL CITATION R/CR.MA/7260/2023 ORDER DATED: 11/10/2023 undefined no.3 was convicted and was imposed sentence. The complainant had again demanded money from the accused, however, the said demand was refused, and no money was paid. It was conveyed by the respondent - accused that they would served the sentence, but would mot make payment of the cheque amount.
2.1 On feeling cheated, the complainant had filed the impugned complaint for the offence punishable under Sections-406, 420, 504, 506(2) and 120B of the IPC. After recording the verification, an order was passed by the learned Magistrate for police investigation. A report was submitted by the Police Officer below Exh.4 on 31.12.2017. On considering the report, cognizance was taken and process was issued under Section-204 of the Cr.P.C. Accused appeared and the preliminary evidence was led by the complainant by examining the four witnesses below Exh.16, 26, 27 and 30 and request was made to frame the charge against the respondents accused for the alleged sections. The respondents - accused had given the application seeking discharge under Section-245 on the ground that the cheques Page 3 of 9 Downloaded on : Thu Oct 12 20:46:01 IST 2023 NEUTRAL CITATION R/CR.MA/7260/2023 ORDER DATED: 11/10/2023 undefined were drawn by accused no.2 alone i.e Mukeshbhai Maghabhai and for that, he had faced the trial and conviction also. The judgment rendered in the Criminal Cases, which was passed under Section-138 of N.I. Act, was also produced at mark 3/5 to 3/7. After considering the argument advanced by both the parties in the application for seeking discharge, the learned trial Court passed an order below Exh.1 allowing the application and discharging the accused under Section-245(2) of the Cr.P.C. for the alleged offence. The said order is under challenge before this Court under this criminal appeal.
3. Heard learned advocate Mr. Paresh Patel for the applicant - original complainant; learned advocate Mr. Rohankumar Gauswami for the respondents - accused and leaned APP Ms. Divyagna Jhala, for the respondent - State.
4. Before entering into the merits, learned advocate for the respondents - accused has taken preliminary objection with regard to the maintainability of this appeal challenging the order under Section-245(2) of the Cr.P.C. Page 4 of 9 Downloaded on : Thu Oct 12 20:46:01 IST 2023
NEUTRAL CITATION R/CR.MA/7260/2023 ORDER DATED: 11/10/2023 undefined
5. Learned advocate for the applicant submits that against the order allowing the discharge under Section-245 of the Cr.P.C., the only remedy before this Court is by way of preferring this appeal under Section-378 as granting discharge would amount to giving acquittal to respondents accused for alleged charges and therefore, the appeal is maintainable in the eye of law.
6. On the other-hand, learned advocate for the respondents
- accused submitted that there are two different provisions in the Code of Criminal Procedure for discharge and acquittal. The order under challenge is passed at the stage of framing of charge under Section-245 of the Cr.P.C. Therefore, the remedy would lie elsewhere not before this Court by way of the appeal under Section-378 of the Cr.P.C.
7. Considering the submissions advanced by the learned advocates for the respective parties and before entering into the aspect of the maintainability, the relevant provision is required to be looked into.
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NEUTRAL CITATION R/CR.MA/7260/2023 ORDER DATED: 11/10/2023 undefined Section-245 of Cr.P.C. reads as under:-
245. When accused shall be discharged. (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
Section 378 of Cr.P.C. reads as under:-
378. Appeal in case of acquittal. - (1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),--
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.
Page 6 of 9 Downloaded on : Thu Oct 12 20:46:01 IST 2023
NEUTRAL CITATION R/CR.MA/7260/2023 ORDER DATED: 11/10/2023 undefined (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal--
(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision. (3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six Page 7 of 9 Downloaded on : Thu Oct 12 20:46:01 IST 2023 NEUTRAL CITATION R/CR.MA/7260/2023 ORDER DATED: 11/10/2023 undefined months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub- section (2).
8. Perusing the order, which was impugned before this Court, this Court finds that the application was given by the respondents - accused before framing of charge seeking discharge from the alleged offence, which was ordered in favour of the respondents - accused. In the opinion of this court, under Section-245 of Cr.P.C., accused would be discharged when the competent court believe the trial will ineffective. At the same time, at the time of discharging the accused, there would not be requirement for scrutinizing any evidence. The test of prima-facie case is to be appeal. There is deference between the 'acquittal' and 'discharge'. An acquittal is verdict in criminal trial that accused is not guilty of the charges against them. A discharge, on the other-hand, is situation where a person is released upon a criminal charge Page 8 of 9 Downloaded on : Thu Oct 12 20:46:01 IST 2023 NEUTRAL CITATION R/CR.MA/7260/2023 ORDER DATED: 11/10/2023 undefined without a trial or conviction. An acquittal requires a trial and verdict, while discharge does not. There is different provision for challenging the order of the acquittal and order of the discharge in the Code of Criminal Procedure. Therefore, in the present case, where order impugned is with regard to allowing the application under Section-245 of Cr.P.C., in the opinion of this Court, the appeal under Section-378 would not lie before this Court. It is open for the applicant - original complainant to file an appropriate application challenging the order of discharge before the appropriate forum in accordance with law. Therefore, this Court deems it fit to dismiss this leave to appeal without entering into the merits of the case. Hence, this leave to appeal is rejected. ORDER IN CRIMINAL APPEAL:-
In view of the order passed by this Court by dismissing the application seeking leave to prefer an appeal, the present Criminal Appeal does not survive and the same is dismissed.
(M. K. THAKKER,J) A. B. VAGHELA Page 9 of 9 Downloaded on : Thu Oct 12 20:46:01 IST 2023