Gujarat High Court
Atulbhai Mukundray Joshi vs State Of Gujarat on 17 April, 2023
Bench: Nisha M. Thakore
R/CR.MA/23346/2022 ORDER DATED: 17/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23346 of 2022
In R/CRIMINAL APPEAL NO. 2543 of 2022
With
R/CRIMINAL APPEAL NO. 2543 of 2022
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ATULBHAI MUKUNDRAY JOSHI
Versus
STATE OF GUJARAT
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Appearance:
MR TANMAY B KARIA(6833) for the Applicant(s) No. 1
MR. JAIMIN PANDYA FOR MR PREMAL S RACHH(3297) for the Respondent(s) No. 2
MR. BHARGAV PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 17/04/2023
ORAL ORDER
1. Heard Mr. Tanmay B. Karia, learned advocate on record for the
applicant-original complainant, learned advocate Mr. Jaimin Pandya
appearing on behalf of Mr. Premal S. Rachh, learned advocate on
record for the respondent No.2-original accused and Mr. Bhargav
Pandya, learned APP appearing for the respondent-State.
2. This is an application seeking leave to appeal filed under Section
378(4) of Cr.P.C., 1973, challenging the judgment and order of
acquittal dated 10.05.2021 passed by the learned Additional Chief
Judicial Magistrate, Morbi in Criminal Case No.242 of 2016. By the said
judgment and order, the respondent No.2 has been acquitted for the
offence alleged under Section 138 of the N.I. Act.
R/CR.MA/23346/2022 ORDER DATED: 17/04/2023
3. Mr. Tanmay B. Karia, learned advocate on record for the
applicant-original complainant, has invited attention of this Court to
the findings and reasons recorded by the learned Magistrate while
recording the order of acquittal. He has submitted that the learned
Magistrate has failed to consider the Section 139 of the N.I. Act. He
has further submitted that in absence of any challenge to the contents
of the cheque and the signature of the complainant on the disputed
cheque, the presumption had arisen in favour of the complainant as
regard existence of legally enforceable debt or liability. He therefore,
submitted that the learned trial court has committed gross error in
shifting the burden upon the complainant to prove his case beyond
reasonable doubt by leading substantial material on record to indicate
the source of income. In support of his submissions, he has relied
upon the decision of the Hon'ble Apex Court in the case of T.
Vasanthakumar vs. Vijayakumari reported in (2015) Vol. 8 SCC Page
No.378. By making the aforesaid submissions, he therefore, urged this
Court that the leave to appeal may be granted.
4. On the other hand, learned advocate Mr. Jaimin Pandya
appearing on behalf of Mr. Premal S. Rachh, learned advocate on
record for the respondent No.2-original accused, has submitted that
the complainant had entered into the witness box and was cross-
examined. He has further submitted that the complainant had
R/CR.MA/23346/2022 ORDER DATED: 17/04/2023
admitted that business relation existed between the parties.
Sufficient opportunity was given to the complainant to bring on
record the documents in the nature of income tax return, account
books. He therefore, submitted that in absence of any cogent material
being brought on record by the complainant, the trial court had
accepted the probable defence raised by the accused and has shifted
the burden upon the complainant to prove his case beyond reasonable
doubt. He has referred to the cross-examination of the complainant.
He therefore, urged this Court that no error is committed by the trial
court in recording the order of acquittal of respondent No.2-accused,
and thus, prayed not to entertain the present application seeking
leave to appeal.
5. Having heard learned advocates appearing for the respective
parties and considering the grounds raised in the memo of appeal, this
Court has noticed that probable defence has been raised by the
accused at the stage of cross-examination of the complainant, even at
the stage of recording the statement under Section 313 of Cr.P.C.,
specific defence has been raised by the accused. The accused has
come up with a case that business relation existed between the
parties and the complainant used to take blank cheque towards
advance payment for purchase of the goods. The complainant has
alleged to have misused such blank cheque. Even on close
R/CR.MA/23346/2022 ORDER DATED: 17/04/2023
examination of the cross-examination of the complainant, it transpires
that the suggestion was put to the complainant with regard to the
disputed cheque, more particularly, the details of date of cheque, the
amount entered and the signature appearing on the disputed cheque.
The complainant has admitted that he has not specified such details in
the notice as well as in his examination-in-chief.
6. At one stage, the reference is made to Criminal Case No.2004 of
2015, wherein the complainant has admitted that complaint with
regard to the amount of Rs.5 Lakhs is pending against him. The
opportunity seems to have been granted to the complainant to bring
on record the details of his source of income, which the complainant
has refused to place it on record. In such circumstances, the very
existence of the legally enforceable debt on the date of presentation
of cheque comes under cloud. In absence of the cogent material, in my
opinion, the trial court has rightly proceeded to record the order of
acquittal. On overall appreciation of the impugned judgment and
order, no error is found in the order recording acquittal of respondent
No.2. Hence, present application for leave to appeal is not entertained
and stands rejected. Consequently, Criminal Appeal also stands
rejected. Notice stands discharged.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
