Gujarat State Co-Opp. ... vs State Of Gujarat
2021 Latest Caselaw 471 Guj

        R/CR.MA/22518/2019                                  ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL MISC.APPLICATION NO. 22518 of 2019

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 GUJARAT STATE CO-OPP. AGRICULTURE AND RURAL DEVLOPMENT
        BANK LTD THRO SANJAYKUMAR VINUBHAI PATEL
                          Versus
                    STATE OF GUJARAT
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Appearance:
MR.AMIT R JOSHI(6682) for the Applicant(s) No. 1
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 : 13/01/2021
                              ORAL ORDER

1. The application has been filed by the applicant­original complainant seeking leave to appeal under Section 378 (4) of the Cr.P.C. with regard to the judgment and order dated 09.07.2019 passed by the 3rd Additional Chief Judicial Magistrate, Mehsana in Criminal Case No. 909 of 2017 whereby the Trial Court has acquitted the respondent No. 2 ­accused from the charges levelled against him under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the said Act").

2. It appears that the applicant­complainant Bank had filed a complaint against the respondent­accused under Section 138 of the said Act alleging inter alia that the complainant Bank had granted a loan of Rs. 1,00,000/­ to the respondent­accused for the rural housing purpose on 19.03.2007 as per the rules and regulations of the Bank and the respondent­accused had executed the requisite documents as also furnished the surety by mortgaging his land in favour of the Bank. The accused had to repay the said loan with

R/CR.MA/22518/2019 ORDER

interest, and therefore he had issued a cheque dated 18.11.2016 for Rs. 40,000/­ in favour of the complainant­ Bank. The said cheque having been presented in the Mehsana District Central Co­operative Bank Ltd. Mehsana, the same was dishonored on 22.11.2016 with the endorsement "insufficient funds". The complainant­Bank therefore had given a Notice on 29.12.2016 to accused calling upon him to make the payment of the dishonored cheque, however the accused had neither replied to the said Notice nor made any payment and therefore the complaint was filed. The Trial Court after appreciating the evidence on record has acquitted the respondent­accused from the charges leveled against him under Section 138 of the said Act.

3. Learned Advocate Mr. Joshi appearing for the applicant­bank submitted that the Trial Court had mis­appreciated the evidence on record and wrongly acquitted the respondent­accused by holding that the complainant had failed to prove the amount of Rs. 40,000/­ was outstanding on the date of issuance of the cheque. According to him, the complainant had produced all the documents including the extract of the loan account of the accused in which the amount of Rs. 41,258/­ was shown as an outstanding amount, against which the accused had issued the cheque in question of Rs. 40,000/­ and the same was dishonored with the endorsement "insufficient funds". He also submitted that the Court had failed to rebut the presumption available to the complainant under Section 139 of the said Act.

4. The Court does not find any substance in the submissions made by the learned Advocate appearing for the applicant. As transpiring from the impugned judgment, there were number of corrections in the extract of the loan account of the accused produced at Exh. 37. It also appears that the accused had issued one cheque being No. 041197 on 08.05.2012 and had allegedly issued the cheque

R/CR.MA/22518/2019 ORDER

no. 041198 (the present cheque in question in the instant case) on 18.11.2016. The Trial Court therefore has observed that it is not believable that the accused would have issued the cheque in question after five years of the earlier cheque. It further appears that as per the 'No Due Certificate' Exh. 42 issued by the complainant­Bank in favour of the accused on 07.05.2013 also, it was mentioned that there were no outstanding dues of the accused. Thus, the Trial Court after duly appreciating the evidence on record in detail had come to the conclusion that the complainant had failed to prove that the amount of Rs. 40,000/­ was legally due from the accused, and that the complainant had misused the cheque in question which was given by the accused to the Bank towards security furnished at the time of taking the loan. The respondent­accused has successfully rebutted the presumption under Section 118 read with 139 of the said Act. It is needless to say that the prosecution has to prove the guilt of the accused beyond reasonable doubt, however the standard of proof on the part of the accused would be preponderance of probabilities only.

5. In that view of the matter, the Court does not find any legal infirmity in the impugned judgment passed by the Trial Court. The Court therefore is not inclined to grant the present application for Leave to Appeal as prayed for. As a result thereof, the Criminal Appeal also stands dismissed.

(BELA M. TRIVEDI, J) SINDHU NAIR