Gujarat High Court
Hareshbhai Raghavjibhai Variya vs State Of Gujarat on 21 August, 2023
Bench: Nisha M. Thakore
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R/CR.MA/2770/2021 ORDER DATED: 21/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 2770 of 2021
With
R/CRIMINAL APPEAL NO. 1853 of 2023
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HARESHBHAI RAGHAVJIBHAI VARIYA
Versus
STATE OF GUJARAT
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Appearance:
MR ADITYA P MISTRI(11315) for the Applicant(s) No. 1
MR DIPESH D SONI(9996) for the Respondent(s) No. 2
Ms. Vrunda C Shah, Addl. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 21/08/2023
ORAL ORDER
1. Heard Mr. Aditya Mistri, learned advocate for the applicant
and Mr. Dipesh Soni, learned advocate for the respondent no.2.
Issue rule making it returnable forthwith. Learned Additional
Public Prosecutor waives service of Rule on behalf of respondent
State and Mr. Soni, learned advocate waives service of Rule on
behalf respondent no.2.
2. This application is filed under Section 378(4) of the Code of
Criminal Procedure seeking leave against the impugned
judgment and order of acquittal dated 18.11.2019 passed by the
learned Additional Chief Judicial Magistrate, Surat in Criminal
Case No.76310 of 2015. By the said judgment and order, the
learned Magistrate has proceeded to record the acquittal of
respondent no.2- original accused for the offence punishable
under Section 138 of the Negotiable Instruments Act.
3. Learned advocate for the applicant has invited attention of
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this Court to the reasons assigned by the learned trial Court
while passing the impugned order of acquittal. At the outset, the
learned Magistrate has submitted that the approach of the
learned Magistrate in shifting burden upon respondent no.2
without there being any probable defence being raised by the
respondent-accused, rebutting presumption which had arisen in
favour of the complainant, is erroneous in view of the ratio laid
down by the Hon'ble Supreme Court in the case of Rohit Jivanlal
Patel vs. State of Gujarat reported in (2019) 8 SCC 106. Learned
advocate for the applicant had invited attention of this Court to
the fact that the trial Court had placed reliance upon the
evidence of the respondent- accused, more particularly, the
witness-Income Tax Inspector, who has been examined vide
Exh.59 by the accused. The trial Court has noticed that the
complainant has suppressed the facts by submitting before the
Court that though he holds Pan Card but has not filed income
tax returns. Whereas accused has been able to bring on record
the fact that the income tax returns have been filed by the
complainant. Noticing the aforesaid evidence, the Court at one
stage has drawn adverse inference against the complainant and
has proceeded to dismiss the complaint mainly on the ground of
questioning his financial ability as well as the aforesaid facts of
suppression by assuming that the complainant is involved in the
business of the finance. Learned advocate has submitted that
upon appreciation of the evidence which has come on record, the
trial Court has satisfied that all the basic ingredients of Section
138 as also under Sections 118 and 139 of the Negotiable
Instruments Act have been established by the complainant. In
such case, the presumption that the cheque in question was
drawn for consideration and the complainant had received such
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R/CR.MA/2770/2021 ORDER DATED: 21/08/2023
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cheque in discharge of an existing debt has come on record.
According to learned advocate, the onus therefore, shifts on the
accused to establish a probable defence so as to rebut such
presumption. While entering into the aspect of financial ability of
the complainant of advancing the amount to the accused
without there being any rebuttal of presumption, which has
already been drawn in favour of the complainant, such other
aspects was not relevant for considering the offence being made
out under Section 138 of the Negotiable Instruments Act. He,
therefore, urge this Court to grant leave to appeal.
4. Mr. Dipesh Soni, learned advocate for the respondent no.2-
accused has invited attention of this Court to the reasons
assigned and has emphasized on the fact that noticing the
suppression of material facts and upon appreciation of the
evidence which has been brought on record by the respondent
accused, learned Magistrate has rightly passed the impugned
order of acquittal. It is further submitted that merely because
the presumption has been drawn in favour of the complainant
would not preclude the learned Magistrate from appreciating the
overall circumstances which has come on record to conclude as
to whether the offence punishable under Section 138 of the
Negotiable Instruments Act has been made out. He, therefore,
objected to grant of leave to appeal.
5. Considering the submissions made by the learned
advocates for the respective parties and having examined the
reasons recorded by the learned trial Court and judgment relied
upon by the learned advocate for the applicant in the case of
Rohit Jivanlal Patel (supra), prima facie, the Court finds that
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leave to appeal requires consideration. Hence, the present
application is allowed and Leave to Appeal, as prayed for, is
hereby granted.
Order in Criminal Appeal:
Admit. Learned Additional Public Prosecutor waives service
of admission on behalf of respondent State and Mr.Soni, learned
advocate waives service of admission on behalf of the respondent
no.2. Registry is directed to call for the Record and Proceedings
of the case from the concerned Court .
(NISHA M. THAKORE,J)
KAUSHIK J. RATHOD
