Gujarat High Court
Harendrabhai Bhogilal Shah vs State Of Gujarat on 20 April, 2023
Bench: Nisha M. Thakore
R/CR.MA/21739/2021 ORDER DATED: 20/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 21739 of 2021
In R/CRIMINAL APPEAL NO. 1902 of 2021
With
R/CRIMINAL APPEAL NO. 1902 of 2021
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HARENDRABHAI BHOGILAL SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR AMRISH K PANDYA(3219) for the Applicant(s) No. 1
MR. BHARGAV PANDYA, APP for the Respondent(s) No. 1
SERVED BY RPAD (R) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 20/04/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC. APPLICATION NO. 21739 of 2021
1. This Court vide order dated 04.07.2022, had issued fresh rule
upon respondent No.2-original accused. Though served, he has chosen
not to appear before this Court or to contest the present application.
2. Heard Mr. Amrish K. Pandya, learned advocate on record for the
applicant-original complainant and Mr. Bhargav Pandya, learned APP
appearing for the respondent-State.
3. This application is filed under Section 378(4) of Cr.P.C., 1973,
seeking leave to challenge the judgment and order of acquittal dated
R/CR.MA/21739/2021 ORDER DATED: 20/04/2023
29.07.2021 passed by learned Additional Chief Metropolitan
Magistrate, N.I. Act Court No.28, Ahmedabad in Criminal Case
No.69036 of 2017, acquitting the respondent No.2-original accused
for the offence alleged to have been committed under Section 138 of
the N.I. Act.
4. Learned advocate Mr. Amrish K. Pandya appearing for the
applicant-original complainant has invited attention of this Court to
the reasons assigned by the trial court while recording the order of
acquittal of respondent No.2. He has submitted that the learned trial
court has mainly on the ground of limitation has not entertained the
complaint by recording the fact that in the cross-examination, the
complainant has admitted about transaction being entered upon with
the accused way back in the year-2014, whereas the disputed cheque
was presented for realization of the amount on 16.09.2017. He has
further submitted that the learned Magistrate committed serious
error of law while not considering Section 25(3) of the Contract Act.
He has further submitted that once the cheque was issued by the
accused it amounts to acknowledgment of even time barred debt. In
such circumstances, the cause of action arose at the stage, when the
cheque was presented for realization of such amount being
dishonored. He has further submitted that even legal notice was duly
served upon the respondent No.2-accused, which was not responded
R/CR.MA/21739/2021 ORDER DATED: 20/04/2023
by the accused. In support of his submissions, he has relied upon the
judgment of the Hon'ble High Court of Bombay (Nagpur Bench) in
the case of Pragati Credit Co-operative Society Ltd., Katol vs. Suresh
Shamrao Gode and Another reported in 2017 LawSuit (Bom) 594. He
therefore, urged this Court to grant leave to appeal.
5. Considering the submissions made by learned advocate on
record for the applicant and the grounds raised in the memo of
appeal, prima facie, the Court finds that that the learned trial court,
upon appreciation of the cross-examination of the complainant in light
of the evidence in the form of disputed cheque which has come on
record, has proceeded to record the finding that the legal debt was
not enforceable in the eye of law as the period of three years'
limitation had expired on the date when the disputed cheque was
presented for realization of such debt. The learned Magistrate has
failed to take into consideration Section 25(3) of the Contract Act. The
judgment relied by learned advocate for the applicant in the case of
Pragati Credit Co-operative Society Ltd., Katol (supra), wherein the
Court has held that once a cheque is drawn for discharge of a time
barred debt, it creates a promise which becomes enforceable contract.
Considering the same, present application seeking leave to appeal
requires consideration and the same is allowed. Rule is made
absolute.
R/CR.MA/21739/2021 ORDER DATED: 20/04/2023
ORDER IN R/CRIMINAL APPEAL NO. 1902 of 2021
1. ADMIT.
2. Learned APP waives service of notice of admission for and on
behalf of respondent-State.
3. Issue bailable warrant of Rs. 10,000/- against respondent-
accused.
4. Respondent-accused be served through concerned police
station.
5. Registry is hereby directed to call for Record & Proceedings
forthwith.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
