Gujarat High Court
Urmilaben Hiteshbhai Kathrotiya vs State Of Gujarat on 31 January, 2025
NEUTRAL CITATION
R/CR.MA/7852/2024 ORDER DATED: 31/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 7852 of
2024
In
F/CRIMINAL APPEAL NO. 13241 of 2024
================================================================
URMILABEN HITESHBHAI KATHROTIYA
Versus
STATE OF GUJARAT & ANR.
===============================================================
Appearance:
MR.KEYUR JALDEEP SHAH(14552) for the Applicant(s) No. 1
PRASHANTKUMAR R SHARMA(8591) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
================================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 31/01/2025
ORAL ORDER
1. The present application is filed by the applicant - original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") seeking leave to file an appeal against the judgment and order dated 29.01.2024 passed by the learned Additional Small Cause Court, Surat in Criminal Case No.16161 of 2019, whereby, the respondent No.2 - original accused came to be acquitted from the charge levelled against him under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I. Page 1 of 8 Uploaded by F.S. KAZI(HC01075) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:40:48 IST 2025 NEUTRAL CITATION R/CR.MA/7852/2024 ORDER DATED: 31/01/2025 undefined Act"). The applicant and the respondent No.2 are hereinafter referred to as "the complainant" and "the accused" as they stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts culled out from the memo of the present application as well as the impugned judgment are as under:
2.1 The complainant is in the business of selling cotton threads, jari, yarn and other textile products and the accused, who is also in the same business, had a long-standing business relationship with the complainant. The accused had purchased goods from 13.06.2017 to 01.08.2017 vide various challans and an amount of Rs.16,23,932/- was due from the accused. The complainant purchased yarn work Rs.3.02,521/- from the accused and in all an amount of Rs.13,21,420/- was outstanding from the accused towards which the accused gave cheque No.999635 dated 23.08.2017 for Rs.1,60,000/- and cheque No. 999636 dated 06.02.2019 for Rs.11,61,420/- both drawn on The Sutex Cooperative Bank Limited, Salabatpura Branch from Account Page 2 of 8 Uploaded by F.S. KAZI(HC01075) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:40:48 IST 2025 NEUTRAL CITATION R/CR.MA/7852/2024 ORDER DATED: 31/01/2025 undefined No.2480141002190 of the accused. The complainant deposited cheque No. 999635 dated 23.08.2017 in his bank and the same returned unpaid, and after the due procedure, the complainant filed Criminal Case No.52433 of 2017 which is pending before the 8th Additional Chief Judicial Magistrate, Surat. The complainant, thereafter, deposited cheque No.999636 dated 06.02.2019 in Yes Bank Limited, Sahara Darwaja Branch and the same returned unpaid with the endorsement "Funds Insufficient". The complainant, thereafter, gave the statutory demand notice, which was refused and the notice is returned unserved with the endorsement that the owner has refused to accept the same, and hence, returned to sender. The complainant filed the criminal case under Section 138 of the N.I.Act on 15.04.2019. 2.2. The accused was duly served with the summons and appeared before the learned Trial Court and her plea was recorded at Exh.06 and the evidence of the complainant was taken on record. The complainant was examined at Exh.04 and Hiteshbhai Ghanshyambhai Kathrotiya was examined Page 3 of 8 Uploaded by F.S. KAZI(HC01075) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:40:48 IST 2025 NEUTRAL CITATION R/CR.MA/7852/2024 ORDER DATED: 31/01/2025 undefined as a witness and the complainant produced 13 documentary evidences in support of her case. After the closing pursis was filed, the further statement of the accused under section 313 of the Cr.P.C. was recorded wherein the accused denied all the evidence of the complainant and refused to step into the witness box or examine defence witnesses. The arguments of the learned advocates for both the parties were heard and by impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the N.I.Act.
3. Being aggrieved and dissatisfied with the impugned judgment and order, the applicant has preferred the present application seeking leave to appeal mainly stating that the learned Trial Court has not properly considered and interpreted the evidence on record and presumptions of Sections 118, 138 and 139 of the N.I.Act and the applicant has proved all the ingredients of Section 138 of the N.I.Act. The applicant has produced documentary evidence including all the bills, by which, the goods were delivered to the Page 4 of 8 Uploaded by F.S. KAZI(HC01075) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:40:48 IST 2025 NEUTRAL CITATION R/CR.MA/7852/2024 ORDER DATED: 31/01/2025 undefined respondent No.2 and the applicant has proved that an amount of Rs.13,21,420/- was outstanding, towards which, two cheques were issued and the cheques in question were for Rs.13,21,420/-. That the cheques have remained unpaid, but the learned Trial Court has not considered that the address of Helly Fab and Shreyansh Enterprise is the same and only the old challans of Helly Fab were used and this fact has not been rebutted by the respondent No.2. The applicant has proved that the cheques were given in discharge of a liability and signed by the respondent No.2 and as the impugned judgment and order is perverse, it is required to be quashed and set aside.
4. Heard learned advocate Mr.Keyur J. Shah for the applicant and learned APP Mr. Bhargav Pandya for the respondent -
State. Though served the respondent No.2 has not appeared either in-person or through an advocate. Perused the paper- book produced by the learned advocate for the applicant.
5. On perusal of the evidence produced by the applicant before the learned Trial Court, it is on record that the complainant Page 5 of 8 Uploaded by F.S. KAZI(HC01075) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:40:48 IST 2025 NEUTRAL CITATION R/CR.MA/7852/2024 ORDER DATED: 31/01/2025 undefined has produced the delivery challans at Exhs. 8 to 15 and the bills at Exhs.16 to 18. The bill of goods purchased from the accused are produced at Exh.19 and the cheque No.999636 is produced at Exh.23, the return memo is produced at Exh.24 and the office copy of the notice sent to the accused is produced at Exh.25, R.P.A.D. receipt is produced a Exh.26, the notice returned unserved is produced at Exh.27 and the online status of the notice, which is returned, is produced to Exh.28. During the cross-examination, the complainant has stated that she has printed bills and challans of "Shreyans Enterprise" and has denied that the cheque has been misused by her. The learned Trial Court has considered that the applicant has not produced any evidence to show that the accused is the owner of "Radhe Jewellery" as the goods mentioned in the challans were sent to "Radhe Jewellery". From the document produced at Exh.19, prima facie, it appears that the accused had sent "Pet Mono Filament Yarn"
of Rs.3,02,512/- on 25.08.2017 to Shreyans Enterprise and the Tax Invoice bears the signature of the accused, which is the same signature on the cheque. It is pertinent to note that the Page 6 of 8 Uploaded by F.S. KAZI(HC01075) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:40:48 IST 2025 NEUTRAL CITATION R/CR.MA/7852/2024 ORDER DATED: 31/01/2025 undefined notice has been refused by the accused and no reply to the notice has been given. Moreover, the accused has not stepped into the witness box or examine witnesses on her behalf and from the evidence. It prime-facie transpires that there was a business transaction between the complainant and the accused and the learned Trial Court has not considered the same.
6. At this juncture it would be fit to refer to the observation of the Apex Court in the case of Kalamani Tex and another Vs. P Balasubramanian reported in (2021) 5 SCC 283 made in Para-17 and Para-18, which are as under :
"17. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar12, where this court held that:
"Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."Page 7 of 8 Uploaded by F.S. KAZI(HC01075) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:40:48 IST 2025
NEUTRAL CITATION R/CR.MA/7852/2024 ORDER DATED: 31/01/2025 undefined
18. Considering the fact that there has been an admitted business relationship between the parties, we are of the opinion that the defence raised by the appellants does not inspire confidence or meet the standard of 'preponderance of probability'. In the absence of any other relevant material, it appears to us that the High Court did not err in discarding the appellants' defence and upholding the onus imposed upon them in terms of Section 118 and Section 139 of the NIA."
7. In light of the above settled principles of law and considering the evidence on record the arguments of the learned advocate for the applicant deserve consideration, and consequently, the application seeking leave to present an appeal is allowed.
(S. V. PINTO,J) *F.S.KAZI.....
Page 8 of 8 Uploaded by F.S. KAZI(HC01075) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:40:48 IST 2025