Tikam Narayandas Kalwani vs State Of Gujarat
2023 Latest Caselaw 2907 Guj

     R/CR.MA/15200/2022                          ORDER DATED: 12/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
           R/CRIMINAL MISC.APPLICATION NO. 15200 of 2022
                In R/CRIMINAL APPEAL NO. 1626 of 2022
                                With
                 R/CRIMINAL APPEAL NO. 1626 of 2022
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                          TIKAM NARAYANDAS KALWANI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR ANKIT Y BACHANI(5424) for the Applicant(s) No. 1
 for the Respondent(s) No. 2
Ms. C M Shah, Addl. PUBLIC PROSECUTOR for the Respondent(s) No.
1
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
                  Date : 12/04/2023

                                ORAL ORDER

1. Heard Mr. Ankit Bachani, learned advocate for the applicant- original complainant. Issue Rule making it returnable forthwith. Ms. C M Shah, learned Additional Public Prosecutor waives service of Rule on behalf of the respondent State.

2.0. This application is filed seeking leave to challenge the judgment and order dated 7.4.2022 passed by the learned 2 nd Additional Chief Judicial Magistrate, Gandhidham in Criminal Case No. 5301 of 2013. By the said judgment and order, the learned Magistrate has proceeded to record the acquittal of respondent no.2 - original accused for the offence punishable under Section 138 of the Negotiable Instruments Act.

3.0. Mr. Bachani, learned advocate for the applicant has placed

R/CR.MA/15200/2022 ORDER DATED: 12/04/2023

on record the oral evidence of the complainant. He has further submitted that the learned trial Court has failed to draw the presumption in favour of the complainant once the signature on the disputed cheque was not disputed by the accused. He further submitted that the only submission which was made by the accused was in the form of argument without production of any evidence with regard to defence of the collateral security cheque and misuse of cheque raised by the accused, the learned Magistrate has proceeded to record the order of acquittal accepting such defence raised by the accused. He has relied upon decision of the Hon'ble Supreme Court in the case of Jain P Jose vs. Santosh reported in 2022-JX(SC) 1360 and has submitted that it was for the accused to rebut the presumption. In absence of relevant material being brought on record that the cheque was not issued in discharge of debt, the learned trial Court has committed error in shifting burden upon the complainant. He, therefore, urge this Court to grant leave to appeal.

4.0. Considering the submissions made by the learned advocate for the applicant- original complainant and the grounds raised in the appeal memo, prima facie, the Court finds that the presumption had arose in favour of the complainant once the signature on the cheque was not disputed by the accused. It appears from the evidence of the complainant that the parties were known to each other and considering friendly relation the complainant had extended the hand loan of an amount of Rs.1,68,000/-. It is contended by the complainant that the

R/CR.MA/15200/2022 ORDER DATED: 12/04/2023

accused had handed over the cheque against the said amount. Considering the decision of the Hon'ble Supreme Court in the case of Kalamani Tex and Another vs. P Balasubramanian reported in (2021) 5 SCC 283 once the accused had admitted his signature on the cheque, the trial Court ought to have presumed that the cheque was issued as a consideration for such legally enforceable debt having voluntarily signed the cheque and handed over by the accused towards such payment. Prima facie, the Court is of the view that merely version of accused about ink of content on cheque and signature of accused on cheque has differed, in the facts of the case, cannot be sufficient to rebut presumption. In absence of any cogent evidence to show that the cheque was not issued in discharge of debt, the presumption would not stand rebutted. The matter requires consideration. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted.

Order in Criminal Appeal

The appeal is admitted. Learned Additional Public Prosecutor waives service of notice of admission on behalf of respondent-State.

Issue bailable warrant in sum of Rs.10,000/- against private respondent no.2. Respondent no.2 be served through the concerned police station. Registry is directed to call for the Record and Proceedings of the case from the concerned Court.

(NISHA M. THAKORE,J) KAUSHIK J. RATHOD