NEUTRAL CITATION
R/CR.MA/1643/2022 ORDER DATED: 18/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1643 of 2022
In R/CRIMINAL APPEAL NO. 158 of 2022
With
R/CRIMINAL APPEAL NO. 158 of 2022
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VAISHALIBEN RAJESHKUMAR KANURKAR LEGAL HEIRS OF
RAJESHKUMAR PARASRAM KANURKAR
Versus
STATE OF GUJARAT
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Appearance:
ADVOCATE NOTICE SERVED for the Applicant(s) No. 1
MR NK MAJMUDAR(430) for the Respondent(s) No. 2
Ms. Vrunda C Shah, Addl.PUBLIC PROSEC UTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 18/09/2023
ORAL ORDER
1. Heard Mr. Bhavik Shah, learned advocate for the applicant- original complainant and Mr. Shivam Majmudar, learned advocate has appeared on behalf of Mr. N K Majmudar, learned advocate for the respondent No.2. Rule returnable forthwith. Ms. Shah, learned Additional Public Prosecutor waives service of Rule on behalf of Respondent no.1- State and Mr.Majmudar, leaned advocate waives service of Rule on behalf of respondent no.2.
2. This application is filed under Section 378(4) of the Code of Criminal Procedure seeking leave to appeal against the impugned judgment and order dated 27.09.2021 passed by the learned Additional Chief Judicial Magistrate, Surat in Special Criminal Case No.76202 of 2015 under Section 138 of the Negotiable Instruments Act. By the said judgment and order, the learned Magistrate has recorded acquittal of respondent- original accused for the alleged offence under Section 138 of the Page 1 of 4 Downloaded on : Wed Sep 20 20:42:26 IST 2023 NEUTRAL CITATION R/CR.MA/1643/2022 ORDER DATED: 18/09/2023 undefined Negotiable Instruments Act.
3. Learned advocate for the applicant, at the outset, has drawn attention of this Court to the issue of time barred debt being taken into consideration by the learned Magistrate while dismissing the complaint. The attention of this Court is drawn to cogent material being brought on record which includes the statement of account maintained by the original complainant. By referring to the aforesaid documents, it is submitted that against the total outstanding amount of Rs.27 lakhs borrowed by the original accused, part payment of an amount of Rs.2,68,792/- was received by the original complainant during the period from 15.4.2011 to 22.6.2015. Thereafter, the disputed cheques at Exh.16 dated 1.7.2015 for an amount of Rs.10 lakhs and at Exh.18 dated 1.7.2015 for an amount of Rs.10 lakhs was issued by the original accused in favour of complainant. By pointing out the aforesaid facts, learned advocate has submitted that even applying principle laid down by the Hon'ble Delhi High Court in the case of M/s. Jage Ram Karansing & Another vs. State and Another reported in 2019 SCC Online(Del) 9486, there was an acknowledgment of debt and in such circumstances the period of limitation stand extended.
4. On the other hand, learned advocate for the respondent- accused has vehemently objected to the aforesaid submissions of learned advocate for the applicant by drawing attention of this Court to the reasons assigned by the learned Magistrate. It is submitted that though no error is committed by the learned Magistrate in not accepting the aforesaid document to be read as an evidence in absence of compliance of mandatory provision Page 2 of 4 Downloaded on : Wed Sep 20 20:42:26 IST 2023 NEUTRAL CITATION R/CR.MA/1643/2022 ORDER DATED: 18/09/2023 undefined under Section 65 (B) of the Indian Evidence Act. Apart from the aforesaid fact, learned advocate has relied upon the judgment of this Court in the case Dilipkumar Manharlal Vyas Since deceased through Legal Heirs & others vs. Girdharlal Harjibhai & others reported in 2023-JX-(guj) 0-498, wherein, this Court has followed the principle laid down by the Hon'ble Supreme Court upholding the judgment of the Kerala High Court in the case of Sasseriyil Joseph vs. Devassia rendered in SLP(Criminal) No.1785 of 2001 dated 10.09.2001. It is further submitted that in absence of the documents relied upon by the original complainant, no cogent material has come on record indicating acknowledgment of the debt during the prescribed period of three years. As per Article 19 of the Limitation Act, the period of limitation had expired prior to the alleged issuance of cheque at the instance of the accused as contended by the complainant. Learned advocate has also relied upon the judgment of the Hon'ble Supreme Court in the case of A V Murthy vs. B.S. Nagabasavanna reported in (2002) 2 SCC 642. It is further submitted that in fact the original transaction had taken place with the complainant who had expired pending the Trial. The wife of the deceased complainant was permitted to prosecute proceedings before the trial Court. Though, she had entered the witness box in absence of any personal knowledge being derived by the said witness and having accepted the defence raised by the respondent- accused with regard to very existence of the legally enforceable debt, it is submitted that no error is committed by the learned Magistrate in recording the impugned order of acquittal. He, has therefore, objected to grant of leave to appeal.
5. Having heard the learned advocates for the respective Page 3 of 4 Downloaded on : Wed Sep 20 20:42:26 IST 2023 NEUTRAL CITATION R/CR.MA/1643/2022 ORDER DATED: 18/09/2023 undefined parties and having perused the impugned judgment and order as well as judgments relied upon by the learned advocates, prima facie, the Court notices that some material has come on record in the form of statement of account. The very specific averments have been made by the original complainant that the part payment of Rs.2,68,792/-was received during the period from 15.4.2011 to 22.6.2015 towards the alleged outstanding amount of Rs.27 lakhs as contended to have been borrowed by the original accused. This Court had called upon the learned advocate for the respective parties as to whether the aforesaid averments or the evidence of the complainant has been controverted in the cross examination. At this stage of grant of leave to appeal, the Court finds that an arguable case is made out and the matter requires to be decided after re-appreciation of the evidence, which has come on record. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted. Rule is made absolute to the aforesaid extent.
Order in Criminal Appeal No.158 of 2022 Admit. Learned Additional Public Prosecutor waives service of admission on behalf of respondent State and Mr.Majmudar, learned advocate waives service of admission on behalf of the respondent no.2. Registry is directed to call for the Record and Proceedings of the case from the concerned Court. Registry is directed to notify the Appeal for hearing on 22.1.2024.
(NISHA M. THAKORE,J) KAUSHIK J. RATHOD Page 4 of 4 Downloaded on : Wed Sep 20 20:42:26 IST 2023