Ranchhodbhai S/O Ganeshbhai ... vs State Of Gujarat
2021 Latest Caselaw 470 Guj

        R/CR.MA/2531/2020                                              ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 2531 of 2020
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              RANCHHODBHAI S/O GANESHBHAI RATHOD
                             Versus
                      STATE OF GUJARAT
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Appearance:
MR.KISHORE PRAJAPATI(6305) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS C. M. SHAH, APP for the Respondent(s) No. 1
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 CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI

                             Date : 13/01/2021
                              ORAL ORDER

1. The application has been filed by the applicant­ appellant­ original complainant seeking leave to appeal under section 378(4) of the Code of Criminal Procedure in connection with the judgment and order dated 15.12.2018 passed by the Judicial Magistrate First Class (Municipal) Vadodara (hereinafter referred to as 'the Trial Court') in Criminal Case No.7030/2016, whereby the Trial Court has acquitted respondent no.2­ accused from the charges levelled against him under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the said Act').

2. As per the case of the applicant­ original complainant, the accused happened to be his friend and in the year 2015 since accused was having financial constraint, he had requested the complainant to lend him hand loan. The

R/CR.MA/2531/2020 ORDER

complainant therefore had given Rs.1,50,000/­ in June, 2015, Rs.50,000/­ in July, 2015 and again Rs.50,000/­ in August, 2015 and in all total Rs.2,50,000/­ to the accused. Ultimately, in December, 2015, the accused had given complainant a cheque of Rs.2,50,000/­ dated 11.12.2015 towards the said outstanding amount of complainant. The complainant having presented the said cheque in the Central Bank of India, Subhanpura branch, Vadodara on 14.12.2015 the same had returned dishonored with the endorsement 'fund insufficient'. The complainant therefore had given notice on 17.12.2015 to the accused calling upon him to repay the amount of said cheque, however, the accused had not paid the same and had given evasive reply. The complainant therefore had filed the complaint before the Trial Court.

3. The Trial Court after appreciating the evidence on record has acquitted the respondent­accused from the charges levelled against him under section 138 of the said Act by the impugned judgment and order.

4. Being aggrieved by the said judgment and order passed by the Trial Court, the applicant has filed the present application under section 378(4) of the Code of Criminal Procedure seeking leave to appeal.

5.   The     bone         of     contention            raised         by       learned






       R/CR.MA/2531/2020                                                  ORDER

Advocate Mr. Kishor Prajapati for the applicant is that the accused having admitted his signature on the cheque had failed to rebut the presumption under section 139 of the said Act and therefore, the impugned order of acquittal passed by the Trial Court is erroneous.

6. The Court does not find any substance in the said submission made by learned Advocate Mr. Kishor Prapati for the applicant. As transpiring from the impugned order, the applicant­ original complainant had failed to prove that the complainant had given hand­loan of Rs.2,50,000/­ to the accused. The complainant had not produced any evidence whatsoever except his bare statement in his deposition before the Court, to substantiate his allegation that he had given hand­loan of Rs.2,50,000/­ to the accused. As against that the accused had taken up the defence that the complainant had misused his old blank cheque, which was signed by the accused. The Trial Court therefore has come to the conclusion that though the accused had admitted his signature on the cheque in question, the other writings in the cheque were written by some other person as admitted by the complainant and therefore, there were material alterations in the cheque in question for which, the benefit would go to the accused. The Trial Court after considering the factual and legal position has acquitted the accused from the charges, which does not call for any interference.

R/CR.MA/2531/2020 ORDER

7. In that view of the matter, the Court does not find any illegality or infirmity in the impugned judgment and order passed by the Trial Court. Accordingly, present application seeking leave to appeal is dismissed. As a result thereof, Criminal Appeal is dismissed.

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