Sureshkumar Dahyabhai Patel vs Sharmilaben Shantilal Chaudhri
2021 Latest Caselaw 1754 Guj

       R/CR.MA/18074/2020                                         ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL MISC.APPLICATION NO. 18074 of 2020

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                   SURESHKUMAR DAHYABHAI PATEL
                               Versus
                  SHARMILABEN SHANTILAL CHAUDHRI
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Appearance:
MR. MA PATHAN(6840) for the Applicant(s) No. 1
RAFIK LOKHANDWALA(5590) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS CM SHAH, APP for the Respondent(s) No. 2
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 CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI
                    Date : 05/02/2021
                     ORAL ORDER

1. The application has been filed by the applicant­complainant under Section 378(4) seeking leave to appeal against the impugned judgment and order dated 28.02.2020 passed by the Additional Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No. 672 of 2016, whereby the trial Court has acquitted the respondent No. 1­ accused No. 2 from the charges levelled against him under Section 138 of the Negotiable Instruments Act. The complainant had filed complaint before the trial court against the respondent No. 1­accused no. 2 and her husband Shantilal Chaudhary­accused No. 1, however the accused no. 1 having expired pending the trial, the case had abated qua him.

2. The complainant had alleged inter alia that the accused nos. 1 and 2 had received Rs. 5,00,000/­ from the complainant and assured him to have a government job, however the complainant did not get the job and therefore the accused No. 2 returned the said amount by way of cheque in question, which on presentation in the bank was dishonored with the endorsement "funds insufficient". The

R/CR.MA/18074/2020 ORDER

complainant after issuing the statutory notice had filed a complaint for the offence punishable under Section 138 of the said Act. The trial Court after considering the evidence on record has acquitted the respondent No. 1­accused No. 2 from the charges levelled against her and hence the present appeal is preferred.

3. Learned Advocate Mr. Lokhandwala appearing for the applicant submitted that the trial Court has committed as error in holding that the transaction in respect of which the cheque was given was not legal. According to him, when the complainant had proved the issuance and dishonor of the cheque given by the accused, the Court could not have dismissed the complaint on the ground that the cheque was not issued towards legally enforceable debt.

4. The Court does not find any substance in the submission of the learned Advocate Mr. Lokhandwala for the applicant. As rightly held by the trial Court, admittedly the complainant had entered into an illegal transaction with the accused and paid Rs. 5,00,000/­ for getting a government job which he did not get, and therefore when according to him the respondent­accused had issued the cheque in question in respect of the said transaction, such cheque could not be said to have been issued towards any legally enforceable debt. Therefore, the trial Court has rightly rejected the complaint of the complainant. The Court does not find any illegality or infirmity in the impugned order passed by the trial Court.

5. In that view of the matter, the present application seeking leave to appeal deserves to be dismissed and is accordingly dismissed. As a result thereof, the Criminal Appeal also stands dismissed.

(BELA M. TRIVEDI, J) SINDHU NAIR