Shree Pankaj Subhashchandra ... vs State Of Gujarat
2021 Latest Caselaw 1751 Guj

        R/CR.MA/22335/2019                                  ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL MISC.APPLICATION NO. 22335 of 2019

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 SHREE PANKAJ SUBHASHCHANDRA TYAGI, DIRECTOR OF KRISHNA
              TAFLON AND CHEMICALS PVT. LTD
                          Versus
                    STATE OF GUJARAT
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Appearance:
JIGNESHKUMAR M NAYAK(8558) for the Applicant(s) No. 1
 for the Respondent(s) No. 2,3
MS C. M. SHAH, APP for the Respondent(s) No. 1
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 CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI

                             Date : 05/02/2021
                              ORAL ORDER

1. The applicant-complainant has filed present application seeking leave to appeal under section 378(4) of the Code of Criminal Procedure, 1973 in connection with the judgment and order dated 19.09.2019 passed by the 4th Additional Senior Civil Judge, Ahmedabad (Rural), Ahmedabad (hereinafter referred to as 'the Trial Court') in Criminal Case No.5449 of 2015, whereby the Trial Court has acquitted respondent nos.2 and 3- original accused from the charges levelled against them for the offences punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the said Act').

2. The applicant-complainant had filed the complaint before the Trial Court alleging inter alia that the accused no.2 Ajaysinh was running a Finance Company and the accused no.1- Rasikbhai used to contact the persons, who needed a loan. The

R/CR.MA/22335/2019 ORDER

accused no.1 would introduce such persons to accused no.2. Since, complainant needed a loan, he had approached the accused no.1, who inturn had taken the complainant to accused no.2. According to the complainant, the complainant had incurred expenses as asked by accused no.2 and given money to accused no.1 for different-different purposes at different-different times, however, the complainant did not get the loan amount from the accused no.2. The complainant therefore had lodged a criminal complaint against both the accused with the Gandhinagar police station on 19.09.2014 alleging criminal breach of trust and cheating against both the accused, which was registered as C.R. No.I-34/2015. It was further alleged by the complainant that thereafter, the accused no.2 had asked the accused no.1 to give the complainant a cheque towards compensation and accordingly, accused no.1 had given complainant a cheque of Rs.5,00,69,000/- on 22.05.2015. The said cheque having been deposited by the complainant in the I.D.B.I. Bank, Thaltej, Ahmedabad, the same had returned dishonoured on 27.05.2015. The complainant thereafter had given a notice on 06.06.2015 to both the accused persons calling upon them to pay the said amount of cheque, however, the accused had neither paid any amount nor given any reply to the said notice. Therefore, the complaint was filed.

3. The Trial Court after appreciating the evidence on record has acquitted both the accused as per the impugned judgment and

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order against which the applicant- complainant has preferred present application seeking leave to appeal under section 378(4) of the Code of Criminal Procedure.

4. Learned Advocate Mr.J. M. Nayak appearing for the applicant submitted that the cheque in question was given by the accused no.1 towards the compensation for the expenses incurred by the complainant. According to him, the complainant had also filed a civil suit against- the accused for recovery of an amount of Rs.1,23,00,000/-, which was decreed by the concerned Court, however, the Trial Court has acquitted the accused on the ground that the complainant had failed to prove his source of income as also his capacity to pay such huge amount to the accused.

5. In the instant case, it appears that admittedly the cheque in question was not signed by the respondent no.3- accused no.2 and the same was allegedly signed by the respondent no.2- accused no.1. The complainant is absolutely silent as to how much loan he required from the accused no.2 and as to how he expended the amount at the instance of the accused no.2 for obtaining such loan amount. It is just unbelievable that the complainant would have spent such a huge amount for obtaining a loan. The Trial Court has also held that there were number of contradictions in evidence of the complainant. He had also failed to prove his income by producing on record the bank statement or income tax returns, as to how he had spent

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such a huge amount for obtaining the loan from the respondents-accused and under what circumstances the accused had given the cheque in question to the complainant. The order passed by the Trial Court being well considered, just and proper, does not warrant any interference. The Court therefore is not inclined to grant leave to appeal against the said judgment and order.

6. In that view of the matter, the application seeking leave to appeal being devoid of merits is dismissed. As a result thereof, Criminal Appeal is also dismissed.

(BELA M. TRIVEDI, J) MEHUL B. TUVAR