Bherulal Devilal Kharol vs State Of Gujarat
2022 Latest Caselaw 7644 Guj

     R/CR.RA/946/2022                           ORDER DATED: 07/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 946 of 2022

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                        BHERULAL DEVILAL KHAROL
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MEET R MODI(8744) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MH BHATT, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                            Date : 07/09/2022

                              ORAL ORDER

1. The present Criminal Revision Application is

preferred under Section 397 read with Section 401 as well

as Section 482 of the Code of Criminal Procedure 1973

challenging the judgment and order dated 3.8.2022 in

Criminal Appeal No.129 of 2019 passed by learned 6 th

Additional Sessions Judge, Surat confirming the judgment

and order dated 25.5.2017 in Criminal Case No.24580 of

2012 passed by learned 5th Additional Chief Judicial

Magistrate, Surat convicting the applicant accused for the

offence under section 138 of the Negotiable Instruments Act

1881.

R/CR.RA/946/2022 ORDER DATED: 07/09/2022

2. The broad facts of the case are that original

complainant - respondent No.2 herein had filed Criminal

Case No.24580 of 2012 against the applicant herein alleging

that respondent No.2 along with a partner namely

Dineshbhai Jagannath Chaudhari had intended to

purchase a property bearing shop No.3, plot No.56,

Ambikanagar Cooperative Housing Society situated on

Survey No.8 at Pandesara, Surat from the applicant for

which a notarised agreement to sell bearing entry No.6463

dated 15.12.2010 came to be executed between the parties.

It is alleged that an amount of Rs.7,00,000/- had already

been paid by respondent No.2 in furtherance of the said

agreement to sell and was also ready to pay the remaining

amount. Eventually, respondent No.2 and the partner had

requested the applicant to return the money already paid

along with the profit to which the applicant was agreed and

hence, the applicant issued the cheque No.773396 dated

14.5.2012 of ICICI Bank for Rs.5,00,000/-. The said cheque

came to be deposited by respondent No.2 which came to be

R/CR.RA/946/2022 ORDER DATED: 07/09/2022

bounced on 25.5.2012.

3. The respondent No.2, therefore, issued legal

notice to the applicant on 6.6.2012 under section 138 of the

Negotiable Instruments Act 1881 which was not replied by

the applicant and therefore, respondent No.2 ultimately filed

Criminal Case No.24580 of 2012 in the court of learned 5 th

Additional Chief Judicial Magistrate, Surat.

4. Learned trial Court, after full-fledged trial and

after hearing the parties convicted the present applicant for

the offence under section 138 of the Negotiable Instruments

Act 1881 and sentenced to undergo simple imprisonment

for a period of one year and also directed the applicant to

pay the cheque amount towards compensation to

respondent No.2.

5. Being aggrieved, the applicant preferred Criminal

Appeal No.129 of 2019 before the court of learned 6 th

Additional Sessions Judge, Surat. The said appeal came to

be dismissed by confimring the judgment and order passed

R/CR.RA/946/2022 ORDER DATED: 07/09/2022

by the learned trial Court. Hence, the present Criminal

Revision Application.

6. Heard Mr.M.R.Modi, learned advocate for the

applicant. Perused the judgment and material placed on

record.

7. It is contended by Mr.M.R.Modi, learned advocate

for the applicant that respondent No.2 failed to prove that

there was any legal dues concerning the cheques between

the parties. He submitted that valid defence raised by the

applicant has not been examined by the courts below. He

submitted that learned trial Court has erred in not

appreciating the evidence of the applicant of having filed the

complaint against respondent No.2 for forging the

applicant's signature. He submitted that the courts below

have passed the orders on assumptions and presumptions

which has no place in eye of law. He further submitted that

the applicant had categorically disputed alleged agreement

of sell and the monies alleged to have been paid in lieu of

the same. Lastly, Mr.Modi requested this Court allow the

R/CR.RA/946/2022 ORDER DATED: 07/09/2022

present Criminal Revision Application by quashing and

setting the orders under challenge.

8. I have given my thoughtful consideration to the

submissions made by learned advocate appearing for the

applicant and also perused the record.

9. This Court has minutely gone through the

impugned judgments and orders rendered by learned courts

below as well as the material made available to this Court.

As per the facts of the present case, it is not in dispute that

the cheque in question has been issued by the applicant.

The said cheque came to be bounced and returned memo

has been produced on record vide Exh.18 for which no cross

examination has been undertaken by the applicant herein.

Thereafter, statutory notice has also been served upon the

application which is produced on record at Exh.20. It can

also been seen that as the applicant failed to pay the dues of

the respondent No.2, respondent No.2 filed the case before

the learned trial Court under the provisions of the

Negotiable Instruments Act 1881. Learned trial Court after

R/CR.RA/946/2022 ORDER DATED: 07/09/2022

hearing the parties, convicted the applicant herein for the

offence under section 138 of the Negotiable Instruments

1881. The said order of learned trial Court came to be

challenged before the lower appellate court by way of

Criminal Appeal No.129 of 2019. The appellate court also

vide the impugned judgment and order confirmed the

judgment and order passed by the learned trial Court.

10. In view of the aforesaid factual aspect of the

matter, this Court is of the considered opinion that learned

Courts below have rightly convicted the applicant herein for

the offence under section 138 of the Negotiable Instruments

Act 1881 which does not call for any interference by this

Court as the reasons assigned by the Courts below are

found to be just and proper and in recording the said

findings, no illegality or infirmity has been committed by it.

This Court is, therefore, in complete agreement with the

findings, ultimate conclusion and the resultant order of

conviction recorded by learned court below and hence finds

no reasons to interfere with the same.

R/CR.RA/946/2022 ORDER DATED: 07/09/2022

11. In the result, this Criminal Revision Application

fails and accordingly, it is dismissed.

(SAMIR J. DAVE,J) H.M. PATHAN