NEUTRAL CITATION
R/CR.MA/15789/2023 ORDER DATED: 22/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15789 of 2023
In F/CRIMINAL APPEAL NO. 14810 of 2023
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PALANPUR NAGARPALIKA THRO CHIEF OFFICER INCHARGE THRO
PANCHABHAI VALABHAI MALI
Versus
STATE OF GUJARAT
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Appearance:
MR. ABHIJIT RATHOD FOR MR MEHUL H RATHOD(701) for the Applicant(s)
No. 1
for the Respondent(s) No. 2
MS. M.H. BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 22/09/2023
ORAL ORDER
1. Heard learned advocate Mr. Abhijit Rathod appearing for Mr. Mehul Rathod, learned advocate on record for the applicant-original complainant.
2. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of respondent-State.
3. This application is filed seeking leave to appeal under Section 378(4) of the Code of Criminal Procedure against the impugned judgment and order dated 22.02.2023 passed by the learned 4 th Additional Chief Judicial Magistrate, Palanpur, Banaskantha in Page 1 of 5 Downloaded on : Tue Sep 26 20:37:49 IST 2023 NEUTRAL CITATION R/CR.MA/15789/2023 ORDER DATED: 22/09/2023 undefined Criminal Case No.1658 of 2022. By the said judgment and order, the learned Magistrate has recorded the acquittal of the present respondent - original accused for the alleged offence punishable under Section 138 of the Negotiable instruments Act.
4. Learned advocate on record for the applicant-original complainant has made an attempt to explain the existence of the outstanding dues towards the realization of the municipal property tax levied on the shop of the respondent-accused. The attention of this Court is invited to the documents being brought on record by the applicant, more particularly Exh.21, which is the demand cum bill of the outstanding amount of tax raised for financial year 2021-2022, wherein the outstanding amount is reflected for an amount of Rs. 2,77,513/-. It is submitted by learned advocate for the applicant that the learned Magistrate has taken into consideration the evidence of the Tax Inspector, who has appeared on behalf of the original complainant, wherein he has admitted in his cross-examination that the bill raised by the Corporation is illegal. According to the learned advocate for the applicant, the respondent-original accused has failed to deposit the tax amount starting from the financial year 2013-2014 and had failed to make such payment for almost six years, which had resulted into outstanding amount of tax for Rs.2,31,083/- as on Page 2 of 5 Downloaded on : Tue Sep 26 20:37:49 IST 2023 NEUTRAL CITATION R/CR.MA/15789/2023 ORDER DATED: 22/09/2023 undefined 17.09.2019.
4.1 It is further submitted that the aforesaid amount was continuously reflected in the demand bills raised by the Corporation from time to time. The explanation is offered by the learned advocate for the applicant that due to glitch in the software when the computer generated bill was raised on 01.04.2021 for the financial year of 2020- 2021, the amount to be realized was shown as Rs. 23,540/-. Initially the amount was cleared. Noticing the aforesaid fact, inadvertently, the Corporation had issued no due certificate, which has been placed on record by the respondent-accused vide Exh.30. It is further submitted that taking benefit of the no due certificate, which has been inadvertently issued by the Corporation on account of the glitch in the software generating bill of lesser amount, the defence has been put forward by the respondent-accused that the earlier amount outstanding has been cleared.
4.2 To meet with such defence, learned advocate for the applicant has raised the contention that the cheque dated 10.01.2022 was issued by the respondent-accused for an amount of Rs.2,90,000/-, which included the earlier outstanding amount of Rs.2,77,530/- along with penal interest, which comes to total of an amount of Page 3 of 5 Downloaded on : Tue Sep 26 20:37:49 IST 2023 NEUTRAL CITATION R/CR.MA/15789/2023 ORDER DATED: 22/09/2023 undefined Rs.2,90,000/-. In fact, the cheque could not be realized because of the stop payment instructions issued by the respondent-accused. By referring to the aforesaid circumstances, the learned advocate for the applicant has submitted that the learned Magistrate has committed serious error in accepting the defence raised by the accused based on no due certificate. It is further submitted by the learned advocate that in fact, no dispute has been raised by the respondent-accused with regard to his signature and the disputed cheque. In such circumstances, the statutory presumption, which has been drawn in favour of the original complainant remained intact.
5. This Court had called upon the learned advocate to clarify the status of Regular Civil Suit No.5 of 2022 preferred by the present respondent-original accused against respondent-corporation. Learned advocate for the applicant, under the instructions, has submitted that the aforesaid suit is pending adjudication and no interim relief has been passed in favour of the original accused. In such circumstances, the demand bill raised by the complainant has remained in existence and against the aforesaid legally enforceable debt, the disputed cheque has been drawn by the respondent-accused. It is therefore submitted that dishonour of the cheque attracts the offence punishable under Section 138 of the N.I. Act. By making the aforesaid Page 4 of 5 Downloaded on : Tue Sep 26 20:37:49 IST 2023 NEUTRAL CITATION R/CR.MA/15789/2023 ORDER DATED: 22/09/2023 undefined submissions, learned advocate for the applicant has urged this Court to grant leave to appeal.
6. Considering the aforesaid submissions of learned advocate for the applicant and having perused the impugned order as well as the explanation offered with regard to the existence of the legally enforceable debt, prima facie, the court finds that an arguable case is made out for consideration of admission of appeal. Hence, the present application is hereby allowed. Rule is made absolute. Registry is directed to notify the Criminal Appeal for admission hearing.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 5 of 5 Downloaded on : Tue Sep 26 20:37:49 IST 2023