Hinaben Piyush Gandhi Through Poa ... vs Haidar Abbas Shekh Proprietor Of ...
2021 Latest Caselaw 4590 Guj

              R/CR.MA/3299/2019                                        ORDER




               IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                 R/CRIMINALMISC.APPLICATIONNO. 3299of 2019

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       HINABENPIYUSHGANDHITHROUGHPOAPIYUSHAMBALALGANDHI
                             Versus
           HAIDARABBASSHEKHPROPRIETOROF CREATIVECOOLS
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Appearance:
MRVISHALC MEHTA(6152)for the Applicant(s)No. 1
MS CMSHAH,ADDITIONALPUBLICPROSECUTOR(2)for the Respondent(s)No. 2
RIKINKUMARR PATEL(9470)for the Respondent(s)No. 1
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 CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI

                                     Date: 23/03/2021

                                      ORALORDER

1.The present application seeking Leave to Appeal is filed by the applicant under Section 378(4) of the Criminal Procedure Code, 1973, for challenging the judgment and order of acquittal dated 20.01.2018 passed by the Additional Chief Judicial Magistrate, Ankleshwar (hereinafter referred to as 'the trial Court') in Criminal Case No.3946/2009 whereby the trial Court has acquitted the respondent/accused from the charges leveled against him under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the said Act).

2.As per the case of the applicant­complainant, the applicant was engaged in the business of

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money lending and the respondent No.1 - the accused was having a business relationship with him. On 09.06.2009, upon a demand by the respondent No.1 to the applicant, the applicant advanced a sum of Rs.2,20,000/­ to the respondent No.1 and in token thereof, the respondent No.1 had signed a Voucher of Rs.2,20,000/­ and also issued a cheque dated 11.06.2009 bearing No.768187 of Oriental Bank of Commerce, GIDC Branch, Ankleshwar for an amount of Rs.2,20,000/­. As per the further case of the applicant­complainant on 11.06.2009, the applicant deposited the said cheque in her Bank, i.e. HDFC, however, the said cheque returned dishonored on the same day, i.e. 11.06.2009 due to insufficiency of funds as well as due to non­matching of the signature of respondent No.1. The applicant thereafter, gave a Notice on 04.07.2009 to the respondent No.1 demanding the amount of cheque, which was replied by respondent No.1 on 13.07.2009 denying issuance of any such cheque. The applicant thereafter, filed the complaint against the respondent No.1 under Section 138 of the said Act, which was registered as the Criminal Case No.3946/2009. The trial Court after appreciating the evidence passed the impugned judgment and order acquitting the respondent No.1. Being aggrieved by the same, the applicant has filed the present application seeking leave

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to Appeal under Section 378(4) of the Criminal Procedure Code, 1973.

3.The learned Advocate Mr. Vishal C. Mehta for the applicant submitted that the trial Court has miserably failed to appreciate the evidence on record and has given unnecessary benefit of doubt to the respondent No.1. Merely because the money was advanced for two days, that should not be a ground for not believing the case of the applicant. He also submitted that the cheque was issued on 11.06.2009 and deposited in the Bank on the same day and was returned dishonored on the same day and therefore, a clear case under Section 138 of the Act was made out.

4.In the instant case, it appears that the complaint was filed by the complainant through the Power of Attorney - Piyush Ambalal Gandhi. The said Piyush Ambalal Gandhi was examined in support of the contents of the complaint. It may be noted that there was no evidence produced by him at the time of his deposition to show that the complainant was involved in the business of money lending. It was only at the later stage when his evidence was over, a licence was produced. That apart, there are number of corrections not only in the Notice issued by the complainant but also in the return

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memo Exhibit 50 in which the date 10.06.2009 has been corrected as 11.06.2009. There are corrections made in the complaint itself. It is also pertinent to note that though the applicant had produced a Voucher dated 09.06.2009 to show that an amount of Rs.2,20,000/­ was given to the respondent No.1 and the respondent No.1 gave a cheque with date as 11.06.2009, the complaint is silent as to when the said transaction of money lending had taken place. If the money was advanced on 09.06.2009, it is not believable that the said amount was advanced for only two days. From the corrections made in the return memo as well as in the complaint, it appears that the Cheque dated 11.06.2009 was sought to be presented on 10.06.2009 and subsequently the said date was corrected as 11.06.2009 to show that on the same day the cheque had returned dishonored. It may be noted that the respondent No.1 - the accused had, right from the beginning i.e. in his reply given by him to the Notice issued by the complainant, taken up the contention that the complainant had misused the cheque given by him in 2007 and that no such cheque of Rs.2,20,000/­ was given by him either on 10.06.2009 or 11.06.2009. It was also contended that the applicant had made correction in the said cheque for showing the date as 11.06.2009. The trial Court after

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considering the evidence adduced by the complainant and the defence taken up by the accused, has come to the conclusion that the accused had successfully rebutted the presumption otherwise available to the complainant under Section 139 of the said Act by raising a probable defence under Section 313 of Criminal Procedure Code, 1973.

5.At this juncture, it may be noted that though Appellate Court has ample powers to reappreciate evidence led before the trial Court and come to an independent conclusion, however it is equally well settled proposition of law that when two views are possible, the appellate Court should be slow in interfering with the findings of acquittal recorded by the trial Court.

6.A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:­

"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :

"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order

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of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:

"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of

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expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimized but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:

"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."

28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:

"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."

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"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the non­interference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."

7.Considering the overall evidence, the trial Court has acquitted the respondent accused which judgment does not suffer from any legal infirmity. In that view of the matter, the application seeking Leave to Appeal is rejected. As a result thereof, the Criminal Appeal is also dismissed.

Sd/-

(BELAM. TRIVEDI,J) Caroline