The Gujarat High Court allowed an application filed under Section 378(4) of Cr.P.C., 1973, seeking leave to challenge the judgment and order dated 15.02.2023 passed by the learned Special Metropolitan Magistrate vide which it acquitted Respondent No.1. The Court observed that the approach of learned Magistrate in shifting the burden upon the complainant to prove his case beyond a reasonable doubt is not proper when the accused has chosen not to question the financial capacity of the complainant at very first instance by not replying to the statutory notice.
Brief Facts:
The original complainant and the respondents are having family relations and were known to each other as respondent No.1 and original accused No.2, who happens to be the cousin and brother-in-law to the applicant. Respondent No.1 is engaged in event management, and original accused No.2 is engaged in share trading. The respondents had approached the applicant seeking financial help for running the business. The applicant trusted the respondents as being family members and had lent an amount of Rs.14,80,000/- to respondent No.1 on various dates. The respondents had assured the applicant to make good the payment.
Contentions of the Applicant:
The Counsel for the Applicant submitted that at one stage, the learned Magistrate upon appreciation of the aforesaid documents, had arrived at a conclusion that the complainant has been able to establish the existence of legal debt between the parties. However, the learned trial court erroneously proceeded to call upon the complainant to establish his financial capacity and thereby dismissing the complaint.
Further, he argued that once the signature on the disputed cheque was not contradicted by the accused, the statutory presumption was available in favour of the complainant. In such circumstances, the learned trial court failed to appreciate that the reverse onus clause had become operative and the obligation has shifted upon the accused to discharge the presumption imposed upon him. He also contended that in the absence of any reply to the legal notice, the learned trial court ought not to have proceeded to record the order of acquittal on the ground of the financial capacity of the complainant.
Observations of the Court
The Court remarked that the approach of the learned Magistrate in shifting the burden upon the complainant to prove his case beyond a reasonable doubt is not proper when the accused has chosen not to question the financial capacity of the complainant at the very first instance by not replying to the statutory notice. The statutory presumption is drawn under Section 139 of the N.I. The act continued and it was for the accused to discharge the onus by bringing on record such facts to show the preponderance of probabilities about the non-existence of such legal debt between the parties.
The decision of the Court:
The Gujarat High Court, allowing the application, held that the present application for leave to appeal requires consideration.
Case Title: Yogendrakumar Dindayal Dhoot v Manish Kisan Binani
Coram: Hon’ble Justice Nisha M. Thakore
Case no.: R/CRIMINAL MISC.APPLICATION NO. 6567 of 2023
Advocate for the Applicant: Mr. Anik E Shaikh
Advocate for the Respondent: Mr. C. M. Shah
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