NEUTRAL CITATION
R/CR.MA/1684/2023 ORDER DATED: 26/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1684 of 2023
In R/CRIMINAL APPEAL NO. 185 of 2023
With
R/CRIMINAL APPEAL NO. 185 of 2023
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THE SAHYOG CO-OP. CREDIT SOCIETY, DAHOD THRO RAJESHBHAI P. SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR HARDIK H DAVE(6295) 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 : 26/09/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION NO. 1684 of 2023
1. Heard learned advocate Mr. Siddhant S. Parikh, who has appeared on behalf of Mr. Hardik Dave, 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 special leave to appeal under Section 378(4) of Cr.P.C. against the judgment and order of acquittal dated 19.11.2022 passed by the learned 2nd Additional Chief Judicial Page 1 of 5 Downloaded on : Wed Sep 27 20:46:14 IST 2023 NEUTRAL CITATION R/CR.MA/1684/2023 ORDER DATED: 26/09/2023 undefined Magistrate First Class, Dahod in Criminal Case No.2153 of 2018. By the said judgment and order, the learned Magistrate has proceeded to record the acquittal of the present respondent-accused for the offence alleged under Section 138 of the N.I. Act.
4. This Court, vide order dated 14.06.2023, after hearing the learned advocate for the applicant, had called upon the applicant to place on record the details as regards the contention raised by the applicant that the cheque was presented for the first time for realization of the amount on 03.03.2018, as against the resolution issued by the applicant-Cooperative Society authorizing the applicant to pursue the legal remedy based on the Resolution dated 12.03.2018.
5. Learned advocate for the applicant has placed on record the copy of the duplicate memo issued by the concerned bank. On perusal of the aforesaid documents, it has transpired that the disputed cheques were issued on 03.03.2018, which was processed by the concerned bank on 05.03.2018. Noticing the insufficient balance in the account of the respondent-accused, the aforesaid cheques were dishonoured. As against the aforesaid facts, which has emerged on record of the present appeal, the learned Magistrate upon evaluation of the Resolution dated 12.03.2018 passed by the complainant- society, which has come on record vide Exh.43, authorizing the Page 2 of 5 Downloaded on : Wed Sep 27 20:46:14 IST 2023 NEUTRAL CITATION R/CR.MA/1684/2023 ORDER DATED: 26/09/2023 undefined applicant to pursue the proceedings, has noticed that the cheques were dishonoured on 18.03.2018. By noticing the aforesaid fact, the learned Magistrate has doubted the very existence of the resolution by observing that the aforesaid chronology of events goes to suggest that the managing committee of the Credit Society was aware in advance about the default of two blank cheques issued by the respondent-accused.
5.1 The learned Magistrate has further taken into consideration the fact that the loan accounts statement, which has been brought on record vide Exh.44, goes to suggest that the outstanding balance amount includes the expenses incurred by the bank towards the court fees of an amount of Rs.6,000/- and Vakeel fees of an amount of Rs.83,515/-. Noticing the absence of any explanation being offered by the original complainant towards such expenses, the learned Magistrate has arrived at a finding that there did not exist any debt or legal liability on the part of the accused towards the complainant- society. By recording aforesaid findings, the learned Magistrate has proceeded to record acquittal of the respondent-accused. 5.2 The learned Magistrate has also taken into consideration the fact that the complainant-society has not clarified the status of any charge being continued on the property of the accused. Noticing that Page 3 of 5 Downloaded on : Wed Sep 27 20:46:14 IST 2023 NEUTRAL CITATION R/CR.MA/1684/2023 ORDER DATED: 26/09/2023 undefined statement of the account goes to indicate that the loan was sanctioned as property loan.
6. Having heard the learned advocate for the applicant and having perused the reasons assigned by the learned Magistrate, prima facie, the court finds that the cheque was issued by the original complainant on 03.03.2018 and it was processed by the respondent-bank for the first time on 05.03.2018 as is evident from the duplicate memo, which is placed on record by the applicant for the first time in response to the query raised by this Court. Secondly, the Court notices that even if the expense incurred by the bank towards the court fees, vakeel fees and legal notice as is taken into consideration, the outstanding loan amount is more than the amount, which appears on the disputed cheque. If one goes by the plain reading of Section 138 of the N.I. Act, any dishonour of the cheque issued towards the whole or part payment of discharge of liability attracts the offence under Section 138 of the N.I. Act. In such circumstances, the cheque issued by the respondent-accused for an amount of Rs.2 lakhs each can be considered to be issued towards the payment of the outstanding loan amount as contended by the complainant, by relying upon the statement of account, which is brought on record vide Exh.44. On overall consideration of the submissions of learned advocate for the applicant, in the opinion of this Court, the arguable case is made out Page 4 of 5 Downloaded on : Wed Sep 27 20:46:14 IST 2023 NEUTRAL CITATION R/CR.MA/1684/2023 ORDER DATED: 26/09/2023 undefined for considering admission of the appeal. Hence, the present application seeking leave to appeal is hereby allowed. Rule is made absolute.
ORDER IN R/CRIMINAL APPEAL NO. 185 of 2023 Admit.
Notice of admission returnable on 28.02.2024. Learned APP waives service of notice of admission for and on behalf of respondent- State.
Issue bailable warrant of Rs. 10,000/- against respondent- accused.
Registry is directed to call for record & proceedings from the concerned trial court so as to reach this Court before the next date of hearing.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 5 of 5 Downloaded on : Wed Sep 27 20:46:14 IST 2023