The Gujarat State Cooperative ... vs Maheshkumar Bhaishankar Vyas

                                                                             NEUTRAL CITATION




     R/CR.MA/16225/2023                        ORDER DATED: 25/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
           R/CRIMINAL MISC.APPLICATION NO. 16225 of 2023
                In R/CRIMINAL APPEAL NO. 2116 of 2023
                                With
                 R/CRIMINAL APPEAL NO. 2116 of 2023
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 THE GUJARAT STATE COOPERATIVE AGRICULTURE AND RURAL
                DEVELOPMENT BANK LTD
                        Versus
           MAHESHKUMAR BHAISHANKAR VYAS
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Appearance:
MR RUTVIJ S OZA(5594) for the Applicant(s) No. 1
MR KIRTIDEV R DAVE(3267) for the Respondent(s) No. 1
MR RAHUL K DAVE(3978) for the Respondent(s) No. 1
Ms. Monali Bhatt, Addl. PUBLIC PROSECUTOR for the Respondent(s)
No. 2
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                          Date : 25/09/2023

                            ORAL ORDER

1. Heard Mr. Rutvij Oza, learned advocate for the applicant - original complainant and Mr. Kirtidev Dave, learned advocate for the respondent -accused. Rule returnable forthwith. Mr. Dave, learned advocate waives service of Rule on behalf of respondent no.1 and learned Additional Public Prosecutor waives service of Rule on behalf of the respondent State.

2. This application is filed seeking special leave to appeal under Section 378(4) of the Code of Criminal Procedure against the impugned judgment and order of acquittal dated 10.04.2023 passed by the learned Judicial Magistrate, First Class, Bhuj- Kutch in Criminal Case No.1313 of 2019. By the said judgment and order, the learned Magistrate has proceeded to record the Page 1 of 5 Downloaded on : Fri Sep 29 20:36:27 IST 2023 NEUTRAL CITATION R/CR.MA/16225/2023 ORDER DATED: 25/09/2023 undefined acquittal of present respondent- original accused for the offence alleged under Section 138 of the Negotiable Instruments Act.

3. The case put forward by the applicant is that an amount of Rs.4,10,000/- was borrowed by the respondent no.1- accused. The loan was sanctioned on 5.11.2012. As per the loan agreement, the respondent no.1 had defaulted in making repayment and the outstanding amount of Rs.3,29,349/- was reflected in the loan account of the respondent no.1- accused. It is against the payment of such outstanding loan amount, the disputed cheque has been issued by the respondent no.1- accused, which got dishonored, resulting into the proceedings under Section 138 of the Negotiable Instruments Act.

4. Learned advocate for the applicant has drawn attention of this Court to the reasons assigned by the learned Magistrate has further submitted that the learned Magistrate has in absence of any rebuttal by the accused has shifted burden upon the original complainant bank, in absence of document in the nature of statement of loan account, loan ledger, etc. He further submitted that the learned Magistrate committed error in holding that the complainant has failed to prove that the disputed cheque was issued towards the legally enforceable debt has recorded order of acquittal. Challenging the aforesaid order, learned advocate has submitted that once there was no dispute with regard to the signature on the cheque by the respondent - accused, the statutory presumption drawn under Section 118 and Section 139 of the Negotiable Instruments Act were established and it was for the respondent- accused to discharge the said presumption.

NEUTRAL CITATION R/CR.MA/16225/2023 ORDER DATED: 25/09/2023 undefined

5. Mr. Dave, learned advocate for the respondent-accused has vehemently objected to grant of leave to appeal and has submitted that the learned Magistrate has rightly recorded the acquittal. He further submitted that on appreciation of the evidence of the complainant, in absence of cogent material like statement of account or Loan Register, the amount of loan outstanding could not be ascertained. In such circumstances, the learned Magistrate has rightly arrived at a finding that the complainant has failed to prove the existence of "legally enforceable debt" so as to attract the offence punishable under Section 138 of the Negotiable Instruments Act by the respondent accused.

6. Having heard the learned advocates for the respective parties and having perused the impugned order, prima facie the Court finds that as against the total amount borrowed of Rs.4,10,000/- the case put forward by the complainant is the issuance of disputed cheque towards the outstanding amount of Rs.3,29,349/-. Indisputably, it has come on record that the disputed cheque as blank cheque was handed over by the accused as a security cheque. On one hand, the signature was not disputed by accused whereas on other hand, noticing the difference in hand writing of contents of cheque, the learned Magistrate has arrived at conclusion of blank cheque being misused by complainant Bank. In light of such controversy, the learned Magistrate has called upon the complainant to prove his case and noticing the discrepancy of loan amount sanctioned as against the amount reflected in the cheque, has drawn inference against the complainant in absence of such documents.

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7. Prima facie, looking into the facts as transpired on record, in the opinion of this Court, the issuance of blank cheque by the accused, voluntarily signed and handed over by the accused to the bank, goes to indicate that relationship between the parties, which is towards some payment. Once the borrowing of loan of Rs.4,10,000/- has not been controverted then in absence of cogent material to show that cheque was not issued in discharge of debt, was on the accused. The amount in question is less than the principal borrowed amount.

8. If one goes by the plain language of the Section 138 of the Negotiable Instruments Act, the cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money which may be in whole or in part of any debt or other liability goes to indicate that even the cheque issued towards the part of any debt can be treated as legally enforceable debt and the cheque drawn towards the discharge of such whole or part of debt presupposes the existence of "legally enforceable debt". The return of such cheque due to insufficiency of funds would attract offence punishable under Section 138 of the Negotiable Instruments Act. In the opinion of this Court, an arguable case is made out for consideration of the appeal. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted. Rule is made absolute.

Order in Criminal Appeal No.2116 of 2023 Admit. Mr. Dave, learned advocate waives service of admission on behalf of respondent no.1 and learned Additional Public Page 4 of 5 Downloaded on : Fri Sep 29 20:36:27 IST 2023 NEUTRAL CITATION R/CR.MA/16225/2023 ORDER DATED: 25/09/2023 undefined Prosecutor waives service of admission on behalf of the respondent State. 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 27.02.2024.

(NISHA M. THAKORE,J) KAUSHIK J. RATHOD Page 5 of 5 Downloaded on : Fri Sep 29 20:36:27 IST 2023