Gujarat High Court
Rajnikant @ Rajubai Jinabhai ... vs Dakshaben Jigneshbhai Patel on 18 August, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/2715/2022 ORDER DATED: 18/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 2715 of 2022
In R/CRIMINAL APPEAL NO. 295 of 2022
With
R/CRIMINAL APPEAL NO. 295 of 2022
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RAJNIKANT @ RAJUBAI JINABHAI CHAUHAN
Versus
DAKSHABEN JIGNESHBHAI PATEL
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Appearance:
MR HIREN P VYAS(2269) for the Applicant(s) No. 1
A B PATEL(7467) for the Respondent(s) No. 1
MR HARDIK MEHTA ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 18/08/2023
ORAL ORDER
1. Heard Mr. Hiren Vyas, learned advocate for the applicant -
original complainant. Mr. A. B. Patel, learned advocate for the
respondent No.1 - original accused has failed to appear and
assist the Court.
2. Rule returnable forthwith. Learned APP waives service of
Rule on behalf of the respondent No.2 - State.
3. This application is filed under Section 378(4) of the Code of
Criminal Procedure, seeking leave to appeal against the judgment
and order dated 29.12.2021 passed by the learned 2 nd Additional
Chief Judicial Magistrate, Nadiad, acquitting the respondent No.1 -
original accused for the offence punishable under Section 138 of
the Negotiable Instruments Act.
NEUTRAL CITATION
R/CR.MA/2715/2022 ORDER DATED: 18/08/2023
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4. It is submitted by the learned advocate for the applicant that
the complainant and the accused are known to each other. The
husband of the respondent No.1 is in business of building
construction, running in the firm "Earth Corporation". It is the case
of the complainant that on various occasions, the respondent No.1
and her husband had borrowed the money from the complainant
for business purpose and had assured about the repayment of
such borrowed amount. It is further contended that on 28.01.2018,
the respondent No.1 and her husband had approached the
complainant and had requested for hand loan of an amount of
Rs.18 Lakhs for the construction and development of their new
scheme. It is the case of the complainant that on 02.02.2018, such
amount was handed over to the respondent and it was assured
that the amount shall be repaid within a period of 5 months.
Initially, time was given to make good such payment, however, the
same was not paid and the cheque dated 23.08.2018 was issued
for an amount of Rs.8 Lakhs, which was drawn under the signature
of the present respondent No.1 in favour of the complainant. Such
cheque was presented for realization on 24.08.2018, which was
dishonoured on the ground of "Account Closed". In such
circumstances, the complainant was constrained to raise demand
notice dated 05.09.2018, which was duly served upon the
respondent - accused through RPAD on 10.09.2018. The period
stipulated under the demand notice was over, however, the
respondent failed to respond to such notice. In absence of any
payment of amount, the complainant was constrained to approach
the Court of learned Magistrate by filing complaint under Section
138 of the Negotiable Instruments Act, which was registered as
Criminal Case No. 3747 of 2018.
NEUTRAL CITATION
R/CR.MA/2715/2022 ORDER DATED: 18/08/2023
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5. By inviting attention of this Court to the aforesaid fact, the
learned advocate for the applicant has submitted that initially the
defence was raised by the accused with regard to the land
transaction entered with the father-in-law of the respondent.
According to the defence raised by the respondent, the said land
deal was cancelled and towards such transaction, security
cheques furnished by the respondent, were subsequently,
misused by the complainant. The attention of this Court is invited
that though the respondent - accused brought evidence by placing
on record the statement of bank account of Mansukhbhai
Kalyanbhai Patel and Jigneshbhia Mansukhbhai Patel vide Exhibit
32 and 33 as well as sale deed vide Exhibit 34, the learned
Magistrate upon appreciation of the aforesaid evidence, has not
accepted the defence of the respondent.
6. It is further submitted that the learned Magistrate though
being convinced about the defence, being not found probable,
proceeded to dismiss the complaint solely on the ground that the
complainant has failed to prove his financial ability to fund huge
amount of Rs. 18 Lakhs in cash to the respondent. Learned
advocate has relied upon the judgment of Hon'ble Apex Court in
the case of Tedhi Singh Vs. Narayan Dass Mahant reported in
(2022) 6 Supreme Court Cases 735 and has contended that the
Hon'ble Apex Court has deprecated such approach of the learned
Magistrate of entertaining such defence, for the first time at the
stage of cross-examination of the complainant, more particularly,
when no defence was raised by the respondent to the legal notice.
He, therefore, urged this Court to grant leave to appeal.
7. Having heard the learned advocate for the applicant -
NEUTRAL CITATION
R/CR.MA/2715/2022 ORDER DATED: 18/08/2023
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original complainant and having perused the impugned order as
well as the judgment relied upon by the learned advocate for the
applicant, prima facie this Court finds that in absence of any reply
being given to the legal notice, the matter requires consideration.
Hence, this application seeking leave to appeal is granted. Rule is
made absolute.
CRIMINAL APPEAL No.295 of 2022:
ADMIT. Learned APP waives service of Notice of admission
on behalf of the respondent No.2 - State.
Issue bailable warrant of in the sum of Rs. 10,000/-
against private respondent No.1.
R & P be called for.
(NISHA M. THAKORE,J)
Y.N. VYAS
