Gujarat High Court
Yogendrakumar Dindayal Dhoot vs Manish Kisan Binani on 19 April, 2023
Bench: Nisha M. Thakore
R/CR.MA/6410/2023 ORDER DATED: 19/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6410 of 2023
In R/CRIMINAL APPEAL NO. 914 of 2023
With
R/CRIMINAL APPEAL NO. 914 of 2023
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YOGENDRAKUMAR DINDAYAL DHOOT
Versus
MANISH KISAN BINANI
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Appearance:
MR ANIK E SHAIKH(10873) for the Applicant(s) No. 1
MR SATYAJIT SEN(731) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2
MS. C.M. SHAH, APP for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 19/04/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION NO. 6410 of 2023
1. Heard Mr. Anik E. Shaikh, learned advocate on record for the
applicant-original complainant.
2. Rule returnable forthwith. Learned APP waives service of notice
of rule for and on behalf of respondent-State.
3. This application is filed under Section 378(4) of Cr.P.C., 1973,
seeking leave to challenge the judgment and order dated 15.02.2023
passed by the learned Special Metropolitan Magistrate, N.I. Act Court,
R/CR.MA/6410/2023 ORDER DATED: 19/04/2023
Ahmedabad in Criminal Case No.1579 of 2015. By the said judgment
and order, the learned trial court has proceeded to record the order of
acquittal of respondent No.1 for the offence punishable under Section
138 of the N.I. Act.
4. At the outset, Mr. Anik E. Shaikh, learned advocate on record
for the applicant-original complainant, has invited attention of this
Court to the fact that the original complaint came to be dismissed
against the original accused No.2, who has been joined as respondent
No.2 pursuant to the order passed below Exh.1 under Section 203 of
Cr.P.C. He therefore, prays this Court that the name of respondent
No.2 be deleted from the record of present appeal.
5. Permission, as sought for, stands granted. Respondent No.2 be
deleted from the cause title. Let necessary amendment be carried out
in the record forthwith.
6. Mr. Anik E. Shaikh, learned advocate on record for the
applicant-original complainant, has further invited attention of this
Court to the findings recorded by the learned Magistrate while
recording the impugned order of acquittal of respondent No.1. He has
submitted that the original complainant and the respondents having
family relations and were known to each other as respondent No.1
and original accused No.2, who happens to be the cousin brother-in-
R/CR.MA/6410/2023 ORDER DATED: 19/04/2023
law to the applicant. Respondent No.1 is engaged in the business of
event management and original accused No.2 is engaged in the
business of share trading. It is the case of the complainant that the
respondents have approached the applicant seeking financial help for
running business. The applicant had trusted the respondents as being
family members and had lent an amount of Rs.14,80,000/- to
respondent No.1 on various dates. It is contended that the
respondents have assured the applicant to make good the payment.
The supporting documents in the nature of promissory notes
executed by the respondent No.1 on 06.12.2012 for an amount of Rs.6
Lakhs and on 08.12.2012, for an amount of Rs.2,80,000/-, have been
brought on record as Exhs.11 and 12. He has further submitted that at
one stage, the learned Magistrate upon appreciation of the aforesaid
documents, has arrived at a conclusion that the complainant has been
able to establish the existence of legal debt between the parties.
However, on the other hand, the learned trial court has erroneously
proceeded to call upon the complainant to establish his financial
capacity and thereby dismissing the complaint. He has further relied
upon the decision of the Hon'ble Apex Court in the case of M/s.
Kalamani Tex & Anr. Vs P. Balasubramanian delivered in Criminal
Appeal No. 123 of 2021 (arising out of Special Leave Petition (Crl.)
No. 1876 of 2018) and has submitted that once the signature on the
R/CR.MA/6410/2023 ORDER DATED: 19/04/2023
disputed cheque was not contradicted by the accused, the statutory
presumption was available in favour of the complainant. In such
circumstances, the learned trial court failed to appreciate that the
reverse onus clause had become operative and the obligation has
shifted upon the accused to discharge the presumption imposed upon
him. He has further submitted that in absence of any reply to the legal
notice, the learned trial court ought not to have proceeded to record
the order of acquittal on the ground of financial capacity of the
complainant. He therefore, urged this Court to grant leave to appeal.
7. Having heard the learned advocate on record for the applicant
and considering the grounds raised in the memo of appeal, prima
facie, the Court finds that the approach of learned Magistrate in
shifting the burden upon the complainant to prove his case beyond
reasonable doubt is not proper when the accused has chosen not to
question the financial capacity of complainant at very first instance by
not replying to the statutory notice. The statutory presumption drawn
under Section 139 of the N.I. Act continued and it was for the accused
to discharge the onus by bringing on record such facts to show the
preponderance of probabilities about non-existence of such legal debt
between the parties. Hence, the present application for leave to
appeal requires consideration and the same is allowed. Rule is made
absolute.
R/CR.MA/6410/2023 ORDER DATED: 19/04/2023
ORDER IN R/CRIMINAL APPEAL NO. 914 of 2023
1. ADMIT.
2. Learned APP waives service of notice of admission for and on
behalf of respondent-State.
3. Issue bailable warrant in the sum of Rs.10,000/- upon
respondent No.1-accused.
4. Registry is directed to call for record and proceedings from the
concerned court forthwith. Appeal is expedited.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
