Gujarat High Court
Gujarat State Co-Op. Agriculture And ... vs State Of Gujarat on 13 December, 2023
NEUTRAL CITATION
R/CR.MA/22054/2023 ORDER DATED: 13/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 22054
of 2023
In R/CRIMINAL APPEAL NO. 2744 of 2023
With
R/CRIMINAL APPEAL NO. 2744 of 2023
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GUJARAT STATE COOP. AGRICULTURE AND RURAL DEVELOPMENT
BANK LTD. THRO PATEL SENDHABHAI VALABHAI
Versus
STATE OF GUJARAT
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Appearance:
MR.AMIT R JOSHI(6682) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS DIVYANGNA JHALA, ADDL.PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 13/12/2023
ORAL ORDER
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 22054
of 2023
1. Learned advocate Mr.Amit Joshi submits that the disputed
cheque was issued towards the payment of the loan of
the father. The loan was taken against the hypothicaiton
of the tractor and due to non-payment of the loan
amount, the son came forward and issued the cheque for
repayment of the dues of the father. Learned trial Court
had acquitted the respondent-accused only on the
ground that there was no any legally enforceable debt
towards the respondent-accused for which the cheque
NEUTRAL CITATION
R/CR.MA/22054/2023 ORDER DATED: 13/12/2023
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was issued. Learned advocate Mr.Joshi has relied on the
provisions of section 138 of the Negotiable Instruments
Act, 1886 and specifically marking on the sentence
mentioned that if the cheque was issued for discharge of
any debt or other liability and the cheque was returned
then the person can be prosecuted under Section 138 of
the Negotiable Instruments Act, 1886. Learned advocate
Mr.Joshi has relied on the decision rendered by the Apex
Court in case of in the case of I.C.D.S. Ltd v/s. Beena
Shabeer and others, reported in (2002) 6 SCC 426
and relied upon paras 10 and 11 of the said decision,
which are reproduced hereinbelow:-
"10. The language, however, has been rather specific as
regards the intent of the legislature. The commencement of
the Section stands with the words "Where any cheque". The
above noted three words are of extreme significance, in
particular, by reason of the user of the word "any" the first
three words suggest that in fact for whatever reason if a
cheque is drawn on an account maintained by him with a
banker in favour of another person for the discharge of any
debt or other liability, the highlighted words if read with the
first three words at the commencement of Section 138, leave
no manner of doubt that for whatever reason it may be, the
liability under this provision cannot be avoided in the event
the same stands returned by the banker unpaid. The
legislature has been careful enough to record not only
discharge in whole or in part of any debt but the same
includes other liability as well. This aspect of the matter has
not been appreciated by the High Court, neither been dealt
with or even referred to in the impugned judgment.
11. The issue as regards the co-extensive liability of the
guarantor and the principal debtor, in our view, is totally out
of the purview of Section 138 of the Act, neither the same
NEUTRAL CITATION
R/CR.MA/22054/2023 ORDER DATED: 13/12/2023
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calls for any discussion therein. The language of the Statute
depicts the intent of the law-makers to the effect that
wherever there is a default on the part of one in favour of
another and in the event a cheque is issued in discharge of
any debt or other liability there cannot be any restriction or
embargo in the matter of application of the provisions of
Section 138 of the Act: 'Any cheque' and 'other liability' are
the two key expressions which stands as clarifying the
legislative intent so as to bring the factual context within the
ambit of the provisions of the Statute. Any contra
interpretation would defeat the intent of the legislature. The
High Court, it seems, got carried away by the issue of
guarantee and guarantor's liability and thus has overlooked
the true intent and purport of Section 138 of the Act. The
judgments recorded in the order of the High Court do not
have any relevance in the contextual facts and the same thus
does not lend any assistance to the contentions raised by the
respondents."
2. In view of above submissions, this Court deems it fit to
allow this application. Hence, application seeking leave to
prefer an appeal is allowed.
ORDER IN R/CRIMINAL APPEAL NO. 2744 of 2023
1. The appeal is admitted. Learned APP waives service of
notice of admission on behalf of respondent-State.
2. Issue Bailable Warrant in the sum of Rs.5,000/- (Rupees
Five Thousand Only) against the respondent-original
accused.
3. Record and proceedings be called for. Appeal be listed in
seriatim.
(M. K. THAKKER,J)
M.M.MIRZA
