Kamleshbhai Balashankar Dave vs Himashu Bhagwanji Chauhan
2023 Latest Caselaw 3444 Guj

     R/CR.MA/20829/2019                                 ORDER DATED: 27/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 20829 of 2019
                                 With
                   R/CRIMINAL APPEAL NO. 995 of 2023
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                          KAMLESHBHAI BALASHANKAR DAVE
                                      Versus
                           HIMASHU BHAGWANJI CHAUHAN
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Appearance:
MR.HIREN M MODI(3732) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
MR. BHARGAV PANDYA ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                 Date : 27/04/2023

                                  ORAL ORDER

Heard Mr. Hiren Modi learned advocate on record for the applicant-original complainant.

2. This application is filed under Section 378 (4) of Criminal Procedure Code seeking leave to challenge the judgment and order of acquittal dated 16.6.2015 passed in criminal Case No. 1577 of 2014 by the learned Judicial Magistrate First Class, Junagadh whereby the present respondent no.1-original accused came to be acquitted for the alleged offence punishable under Section 138 of the Negotiable Instruments Act.

3. Learned advocate for the applicant has invited the attention of this Court to the case of the complainant. He

R/CR.MA/20829/2019 ORDER DATED: 27/04/2023

has submitted that the applicant is in the business of financing loan and considering the friendly relations which existed with the accused had given him hand loan of an amount of Rs 3,50,000/-. It is the case of the complainant that initially the respondent no.1 accused had prayed for financial help of an amount of Rs 5 lakhs. However, such amount was not available and the complainant had arranged the amount and had given him the amount of Rs 3,50,000/- in cash. It has emerged in the evidence of the complainant that such amount was given way back in the year 2012. Subsequently, the complainant had requested for the repayment of the aforesaid amount to which the accused had handed over a cheque bearing No. 045840 of the State Bank of India, Junagadh Branch which was dated 25.1.2014. The complainant under the bonafide belief had presented the cheque before the concerned bank. However, the cheque was dishonored on the ground of 'funds insufficient'. The written memo of the cheque was received by the complainant on 11.3.2014. On 18.3.2014, the complainant was constrained to send legal notice under Section 138 of the N.I Act. It was duly served upon the accused on 21.3.2014 and instead of making payment, the accused had given vague reply. The cause of action had arose for the complainant to lodge the criminal case which was registered as Criminal Case No. 1577 of 2014 before the Court of 4 th Additional

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Senior Civil Judge and Additional Chief Judicial Magistrate, Junagadh.

4. Learned advocate for the applicant has invited attention of this Court to the reasons recorded by learned Magistrate and submitted that in absence of any dispute with regard to the signature on the cheque, the presumption had arose in favour of the complainant with regard to the cheque being drawn for the consideration. He submitted that complainant was holder of cheque issued by accused for discharge of the debt or the liability towards the amount of money outstanding to the credit of the accused. He further submitted that though the defense has come on record in the form of Section 313 statement, however, such defense was only a pausible explanation which cannot be termed as the "probable defense". He, therefore, submitted that in absence of any probable defense being brought on record by the accused there was no rebuttal of presumption which had otherwise arose in favour of the complainant. He has further submitted that the learned Trial Court had wrongly shifted the burden upon the complainant to prove his case beyond reasonable doubt in absence of any rebuttal of presumption. The learned Trial Court committed error in believing the defense of the past transaction where the accused claimed to have borrowed amount of Rs 60,000/- and against which three cheques

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being furnished as security out of which one cheque was alleged to have been misused by the complainant. He has submitted that except for the aforesaid version it would be highly improbable to believe that as against the amount of Rs 60,000/- a person would issue three blank cheques. Even otherwise such amount was realised by the complainant as it has been transpired from the evidence itself. He, therefore, urged this Court that a arguable case is made out and to consider his leave to appeal.

5. This Court by order dated 1.8.2022 had issued notice upon respondent no.2. The notice has been duly served upon respondent no.1. However, he has chosen not to contest the present application.

6. Considering the submissions made by learned advocate appearing for the applicant and the grounds raised in the memo of appeal, indisputedly the defense has come on record in the form of Section 313 statement wherein the accused has raised specific defense about past transaction of an amount of Rs 60,000/- . The accused has provided specific details of the three cheques being handed over to the complainant which includes disputed cheque number. He has also placed on record the details of the accounts in the form of passbook wherein the entries indicates the realisation of

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two cheques out of the aforesaid three cheques. In such circumstances, the Trial Court had rightly accepted the probable defense of the misuse of cheque as raised by the accused. Additionally in the cross- examination of the complainant the accused has also led questions with regard to the financial capacity of the complainant. The complainant at one stage has responded by stating before the Court of having borrowed the amount from his grand father and handing it over as a hand loan to the accused. The Trial Court has noticed such explanation as improvisation as compared to the original version as reflected in the complaint. The Trial Court has also noticed the contradiction in the version of the complainant as against his deposition before the Trial Court. Such improvisation and the contradiction in the evidence of the complainant has led the Trial Court to not to rely upon the evidence of the complainant. The circumstances which has emerged on record in the form of such evidence has led the Trial Court to record the order of acquittal. In my opinion, no fault can be attributed to this approach of learned Magistrate and ultimately recording the order of acquittal with such evidence which has emerged on record the criminal liability cannot be imposed on the accused. No case is made out for the admission of the appeal and hence, application to Leave to Appeal is not entertained.

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6. Consequently the Appeal also fails. Notice is discharged.

(NISHA M. THAKORE,J) MARY VADAKKAN