Indira Finance Through Its Pro. ... vs State Of Gujarat
2021 Latest Caselaw 390 Guj

        R/CR.MA/20795/2019                                    ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL MISC.APPLICATION NO. 20795 of 2019

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  INDIRA FINANCE THROUGH ITS PRO. SUKETU KANAIYALAL BHUTA
                           Versus
                 STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PREMAL S RACHH(3297) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
KURVEN K DESAI(7786) for the Respondent(s) No. 2
MS CM SHAH, APP for the Respondent(s) No. 1
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 CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI

                             Date : 12/01/2021

                              ORAL ORDER

1. The application has been filed seeking Leave to Appeal under Section 378 (4) of the Cr.P.C. arising out of the judgment and order dated 13.11.2017 passed by the 12th Additional Chief Judicial Magistrate, Rajkot in Criminal Case No. 285 of 2014 whereby the Trial Court has acquitted the respondent No. 2­accused from the charges leveled against him under Section 138 of the Negotiable Instruments Act.

2. The short facts are that the appellant­complainant had filed the complaint against the respondent No. 2­accused alleging inter alia that the complainant was engaged in the business of finance and had granted loan of Rs. 7,00,000/­ to the respondent­accused. The accused had given a cheque of Bank of Baroda, Rajkot bearing the cheque no. 000075 of Rs. 8,00,000/­ dated 04.09.2013 towards the security of repayment of the said loan. The said cheque was presented by the complainant in the HDFC Bank Rajkot, which had returned dishonored on 05.09.2013 with the endorsement "insufficient funds"

R/CR.MA/20795/2019 ORDER

According to the complainant, the said cheque was again presented at the request of the accused and the same was again dishonored on 23.11.2013 with the endorsement "insufficient funds". The complainant thereafter had given a Notice to the accused on 09.12.2013, however the same had remained unreplied and therefore the complaint was filed by the complainant under Section 138 of the said Act. The Trial Court after appreciating the evidence on record has acquitted the accused from the charges leveled against him.

3. Learned Advocate Mr. Kansara for Mr. Rachh appearing for the appellant­complainant faintly submitted that the Trial Court had failed to appreciate the evidence in the right perspective and has wrongly acquitted the respondent­accused. However the learned Advocate Mr. Kurven Desai appearing for the respondent No. 2 submitted that the complainant had filed a false complaint, though the release deed was executed by the complainant in favour of the accused, on the accused having made the full payment of the loan as observed by the Trial Court and therefore the complaint as well as the present appeal have been filed misusing the process of law.

4. Having regard to the submissions made by the learned Advocates appearing for the parties and from the documents on record, more particularly the impugned judgment passed by the trial Court, it clearly transpires that the respondent­accused had taken loan from the complainant only once by depositing the title deeds of the property of the accused, and the said title deeds were released by the complainant by executing a re­conveyance deed (Exh. 47) which was registered before the Sub­Registrar, Rajkot on 06.06.2013. The Trial Court has categorically observed that in the release deed also there was a specific mention about the repayment of the loan made by the respondent­accused, and about discharging the accused from the

R/CR.MA/20795/2019 ORDER

liability of the said mortgage. The learned Advocate Mr. Kansara for the applicant­appellant is also not in a position to dispute the said document or the findings recorded by the Trial Court.

5. Under the circumstances, the Court is of the opinion that the complaint was filed by the applicant­complainant misusing the process of law, and that the present appeal is also filed misusing the process of law unnecessarily dragging the respondent­accused to the Court. Filing of such false proceedings is strongly deprecated.

6. In that view of the matter, the appeal is dismissed with the cost of Rs. 10,000/­ (Rupees Ten Thousand Only) which shall be deposited by the applicant­appellant before this Court within two weeks from today. On such deposit being made, the respondent No. 2 shall be at liberty to withdraw the same.

7. In view of the above, the present application for leave to appeal also stands dismissed.

(BELA M. TRIVEDI, J) SINDHU NAIR