Mukeshbhai Parsottambhai Patel vs State Of Gujarat
2021 Latest Caselaw 4663 Guj

              R/CR.MA/18801/2020                                      ORDER




                IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                R/CRIMINALMISC.APPLICATIONNO. 18801of 2020

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                        MUKESHBHAIPARSOTTAMBHAIPATEL
                                    Versus
                              STATEOF GUJARAT
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Appearance:
MRMATAFERR PANDE(3952)for the Applicant(s)No. 1
MRHARDIKA DAVE(3764)for the Respondent(s)No. 2
MS CMSHAH,ADDITIONALPUBLICPROSECUTOR(2)for the Respondent(s)No. 1
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 CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI

                                     Date: 24/03/2021
                                      ORALORDER

1.The applicant-original complainant has filed this Criminal Miscellaneous Application under Section 378 of the Criminal Procedure Code, 1973 seeking leave to Appeal against the judgment and order dated 24.07.2020 passed by the Chief Judicial Magistrate, Surat (hereinafter referred to as 'the trial Court') in Criminal Case No.27051/2018 whereby the respondent No.2­accused was acquitted from the charges leveled against him for the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the said Act).

2. The applicant / complainant had filed the complaint before the trial Court against the respondent No.2 accused alleging inter­alia

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that the complainant and the accused were friends and the accused was residing opposite to the house of the complainant. The accused was carrying on the business of bicycle repairing. Since the accused was in need of money for purchasing a house, the complainant had paid the accused in installments a sum of Rs.12,18,000/­ between the period - January 2016 to December 2016. When the complainant demanded the money back, the accused issued a cheque dated 26.03.2018 for Rs.10,00,000/­ in favour of the complainant. The said cheque when came to be presented in the Bank by the complainant was returned dishonored with an endorsement 'Account Closed' on 31.03.2018. The complainant thereafter, through his Advocate gave a legal notice to the accused demanding the cheque amount on 13.04.2018, to which the accused gave an evasive reply on 23.04.2018. The complainant therefore, filed the complaint under Section 138 of the said Act.

3. During the course of the trial, the applicant­complainant had examined himself at Exhibit 4 and had examined other witnesses, and had also produced the documentary evidence. The accused had also examined himself at Exhibit 25. The respondent accused had stated in his further statement recorded under Section 313 of the Code that

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the complainant had obtained a cheque from a third party and had misused the cheque. The Trial Court after appreciating the evidence on record came to the conclusion that the complainant had failed to prove the charges levelled against the accused beyond reasonable doubt and that the accused had successfully rebutted the presumption under Section 139 of the said Act. The trial Court gave the benefit of doubt to the respondent­ accused and passed the impugned judgment and order. Being aggrieved by the said judgment and order, the applicant has filed the present application seeking leave to Appeal under Section 378(4) of the Criminal Procedure Code, 1973.

4.The learned Advocate for the applicant Mr. Matafer R. Pande submitted that the trial Court had failed to appreciate the evidence adduced by the complainant in its right perspective and had committed an error in not raising the presumption under Section 139 of the said Act in favour of the complainant. He also submitted that the respondent­accused having not denied the issuance of cheque in question, the legal presumption under Section 139 of the said Act was required to be raised by the complainant and that the accused had failed to rebut the said presumption.

R/CR.MA/18801/2020 ORDER

5.On the other hand, the learned Advocate Mr. Hardik A. Dave for the respondent­accused submitted that the trial Court having rightly appreciated the evidence on record, and the complainant having failed to prove the charges levelled against the accused, the trial Court has rightly acquitted the respondent. According to learned Advocate Mr. Dave, the complainant had also not proved that he had the financial capacity to lend such a huge amount to the accused. Learned Advocate Mr. Dave submitted that the accused had given two cheques by way of security and the cheque in question was one of those cheques which has been misused by the complainant in respect of which the accused had also given a complaint to the Police Commissioner on 09.01.2017.

6. Having regard to the submissions made by the learned Advocates for the parties, the Court is of the opinion that there cannot be any disagreement to the submission made by learned Advocate Mr. Matafer R. Pande that the complainant, i.e. the holder of the cheque had received the cheque as referred to in Section 138 of the said Act. There also cannot be any disagreement to the submission made by Mr. Pande that a legal presumption could be raised in favour of the holder of the cheque to the fact that the holder of the

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cheque had received the cheque for the money in full or in part of any debt or any other liability. However, it is equally settled position of law that such a presumption is rebuttable and the accused is at liberty to prove to the contrary. In the instant case, the respondent­accused, by stepping into the witness box as also by bringing the material on record in the cross examination of the complainant, had sought to rebut the presumption by contending that the cheque in question was given by the accused to the complainant in connection with the business of weekly collection to which the accused had become a member and that the said cheque was given by way of security of the amount of weekly collection, which was misused by the complainant. The trial Court has rightly relied upon the deposition of the respondent­ accused for holding that the accused was a competent witness for the defence in view of Section 315 of the Code. The trial Court after appreciating the evidence of the complainant and the accused was of the view that the accused had successfully created a doubt against the story put forth by the complainant that the complainant had given a sum of Rs.12,80,000/­ to the accused by making payment through installments during the year 2016, and that the accused had rebutted the presumption raised against him

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under Section 139 of the said Act. The trial Court has also relied upon the judgments of the Hon'ble Supreme Court more particularly in the case of K. Subramani v. K. Damodara Naidu reported in 2015 Cr.L.J. 912 to record the findings and come to the conclusion that the complainant had failed to prove charges against the accused beyond reasonable doubt.

7.The Court has gone through the impugned judgment and order passed by the trial Court and is of the view that no interference is called for in the same. Hence, the application seeking leave to Appeal is dismissed. Resultantly, the Criminal Appeal also stands dismissed.

Sd/-

(BELA M. TRIVEDI, J) CAROLINE