Gujarat High Court
Uttar Gujarat Vij Company Limited ... vs State Of Gujarat on 19 August, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/7313/2022 ORDER DATED: 19/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7313 of 2022
In R/CRIMINAL APPEAL NO. 781 of 2022
With
R/CRIMINAL APPEAL NO. 781 of 2022
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UTTAR GUJARAT VIJ COMPANY LIMITED THROUGH DEPUTY ENGINEER
Versus
STATE OF GUJARAT
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Appearance:
MR PREMAL R JOSHI(1327) for the Applicant(s) No. 1
MR RAJESH M CHAUHAN(2470) for the Respondent(s) No. 2,3
MS. C.M. SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 19/08/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION NO. 7313 of 2022
1. Heard Mr. Premal R. Joshi, learned advocate on record for the
applicant-original complainant, Mr. Rajesh Chauhan, learned advocate
on record for the respondent Nos.2 and 3-original accused and Ms.
C.M. Shah, learned APP appearing for the respondent-State.
2. Rule returnable forthwith. Learned advocate Mr. Rajesh
Chauhan waives service of notice of rule for and on behalf of
respondent Nos.2 and 3-original accused and learned APP Ms. C.M.
Shah waives service of notice of rule on behalf of respondent-State.
NEUTRAL CITATION
R/CR.MA/7313/2022 ORDER DATED: 19/08/2023
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3. This application is filed under Section 378(4) of Cr.P.C. seeking
leave to file appeal against the judgment and order dated 31.12.2021
passed by learned 5th Additional Chief Judicial Magistrate,
Gandhinagar in Criminal Case No.6965 of 2019. By the said judgment
and order, the learned Magistrate has proceeded to record the
acquittal of respondents- original accused for the offence punishable
under Section 138 of the N.I. Act.
4. Learned advocate for the applicant has invited attention of this
Court to the reasons assigned by the learned Magistrate while
recording the impugned order of acquittal. At the outset, learned
advocate for the applicant has submitted that the learned Magistrate
has proceeded to dismiss the complaint mainly on two grounds. The
first ground, which has been taken into consideration by the learned
Magistrate, is with regard to filing of complaint beyond the prescribed
period of limitation.
4.1 Learned advocate for the applicant has further invited
attention of this Court to the observations of the learned Magistrate,
more particularly, in para No.13.2 of the impugned order and has
submitted that after noticing the various relevant dates, the learned
Magistrate has recorded that the complaint was filed on 15.11.2016,
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R/CR.MA/7313/2022 ORDER DATED: 19/08/2023
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whereas the complaint was actually registered on 09.11.2016. The
aforesaid fact is borne out from the cause title of the impugned order.
He has submitted that in fact, the disputed cheque was issued on
13.08.2016, which got dishonoured on 17.08.2016. The legal notice,
which is brought on record vide Exh.16 and the copy of the same has
been produced on record in the present application at page No.35.
According to him, the legal notice was issued on 30.08.2016, which is
within the prescribed period of 30 days of dishonour of cheque. It is
further submitted that the aforesaid demand notice was duly served
on accused on 28.09.2016 and the period of 15 days as stipulated in
the legal notice got over on 13.10.2016 and the period of one month,
thereafter, as per Section 142 of the N.I. Act got over on 12.11.2016,
whereas the present complaint has been filed on 09.11.2016. Thus, it
is submitted that the learned Magistrate committed serious error in
deciding the aforesaid issue.
4.2 The second ground, which has been taken into consideration by
the learned Magistrate, is that the legal notice was not issued within
the prescribed period of limitation. Learned advocate for the
applicant has relied upon the letter dated 26.09.2016, which is
produced at page No.43 to contend that in fact, the legal notice was
addressed to the respondent-accused on 30.08.2016. Learned
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R/CR.MA/7313/2022 ORDER DATED: 19/08/2023
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advocate for the applicant has also drawn attention of this Court to
Page No.44, which is copy of the track report available on the site of
the Postal Department, to submit that the consignment was actually
delivered to the respondent-accused on 28.09.2016. By making the
aforesaid submissions, he therefore, urged this Court to grant leave to
appeal.
5. On the other hand, learned advocate appearing for the
respondents-accused has objected to grant of present application
leave to appeal. He has submitted that upon appreciation of the
evidence, which has come on record, no error has been committed by
the learned Magistrate in dismissing the complaint. According to him,
the learned Magistrate has given valid reasons. He therefore, urged
this Court to dismiss the present application.
6. Having heard the learned advocates appearing for the
respective parties and having perused the impugned order as well as
the documents, prima facie, the court notices that the track report,
which has been placed on record, goes to indicate that consignment
was booked on 22.09.2016, whereas the legal notice, which is placed
on record at page No.40 claims to have been issued on 30.08.2016.
The court notices discrepancy in the issuance of date, if the track
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R/CR.MA/7313/2022 ORDER DATED: 19/08/2023
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report is to be believed, the question which falls for consideration of
this Court is the compliance of mandatory provision of Section 138(b)
of the N.I. Act being fulfilled or not. Learned advocate for the
respondent was called upon as to whether any question with regard to
the aforesaid fact was raised during the cross-examination of the
complainant. The learned advocate for the respondent has failed to
respond in absence of the record and proceedings. At this stage, the
matter requires consideration and an arguable point is raised, which
requires to be examined closely upon appreciation of the record and
proceedings. Hence, the present application seeking leave to appeal is
hereby granted. Rule is made absolute.
ORDER IN R/CRIMINAL APPEAL NO. 781 of 2022
1. Admit.
2. Learned advocate Mr. Rajesh Chauhan waives service of notice
of admission for and on behalf of respondent Nos.2 and 3-original
accused and learned APP Ms. C.M. Shah waives service of notice of
admission for on behalf of respondent-State.
3. The appeal is expedited. Registry is hereby directed to call for
Record & Proceedings forthwith.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
