Tymk Creative Services Private Limited ... vs State Of Gujarat
2023 Latest Caselaw 8821 Guj

Gujarat High Court

Tymk Creative Services Private Limited ... vs State Of Gujarat on 21 December, 2023

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     R/CR.A/129/2023                            JUDGMENT DATED: 21/12/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 129 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

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1     Whether Reporters of Local Papers may be allowed               NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                       YES

3     Whether their Lordships wish to see the fair copy              NO
      of the judgment ?

4     Whether this case involves a substantial question             YES
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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     TYMK CREATIVE SERVICES PRIVATE LIMITED THRO MEHULBHAI
                     JAGDISHBHAI THAKKAR
                             Versus
                       STATE OF GUJARAT
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Appearance:
MR PRIT U SHAH(11054) for the Appellant(s) No. 1
MS NIDHI M SHETH(11043) for the Appellant(s) No. 1
MR IMRAN H PATHAN(3478) for the Opponent(s)/Respondent(s) No. 2
MS DIVYANGNA JHALA, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                            Date : 21/12/2023

                            ORAL JUDGMENT

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1.With the consent of the parties, appeal is

being decided finally on admission stage.

2.This appeal is filed under Section 378 of the

Code of Criminal Procedure, 1973 ('the

Cr.P.C.' hereinafter) challenging the

judgment and order dated 09.11.2022 passed by

the learned Judicial Magistrate First Class,

Court No.3, Vadodara in Criminal Case No.3388

of 2018, whereby the respondent­accused was

acquitted for the offence punishable under

Section 138 of the Negotiable Instruments

Act, 1886 ('the N.I.Act' hereinafter).

3.It is the case of the complainant that the

respondent­accused had applied to work as a

Marketing Manger in the complainant company

and the complainant­company had assigned the

work to the accused for four years. While

working as a Marketing Manager in the

complaint company and other business,

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respondent­accused was contacted with the

distributor of the complainant­compnay and

other business connected people and had taken

the money of the complainant­company in his

personal account as well as cash through

Aangadiya from the customers of the company

and misappropriated the amount of the

company. When the complainant­company came

into the knowledge, inquiry was made from the

staff members where the respondent­accused

had accepted the misappropriation of the

amount of Rs.30 Lakh and given the

undertaking to pay the dues and issued the

cheque of Rs.10 Lakh towards the repayment of

the amount. At that time, assurance was given

that on depositing the aforesaid cheque, the

cheque would be honored and amount would be

credited to the account of the complainant­

company. On depositing the cheque with the

Bank, it was returned with the endorsement of

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'stop payment'. Thereafter, the complainant­

company had issued the legal notice on

31.12.2018 which has been served on

04.01.2019. The respondent­accused had not

given any reply to the notice neither paid

the amount mentioned in the notice and

therefore, the private complaint came to be

filed being Criminal Case No.3388 of 2019

before the competent Court for the offence

punishable under Section 138 of the N.I.Act.

3.1. After recording the verification, the

process came to be issued under Section

204 of the Cr.P.C., for the offence

punishable under Section 138 of the

N.I.Act and thereafter the accused

appeared through an advocate before the

court and the plea was recorded below

Exhibit 10 in which he denied the charges

and claimed to be tried. To prove the case

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against the respondent­accused, the

complainant examined himself below Exhibit

4 and produced the following documentary

evidence:

Sr.No. Exhibit Number Description 1 Exhibit 14/PW 1 Cheque 2 Exhibit-15/PW 1 Return Memo 3 Exhibit-16/PW 1 Demand Notice 4 Exhibit-17/PW 1 RPAD Receipt 5 Exhibit-18/PW 1 RPAD Tracking Report 6 Exhibit-19/PW 1 Copy of Bank Passbook of the complainant 7 Exhibit-20/PW 1 Registration Certificate of Complainant Company.

3.2. On completion of the evidence, closing

pursis came to be filed and thereafter

further statement of the respondent­

accused came to be recorded under Section

313 of the Cr.P.C. in which the

respondent­accused denied the liability

towards the complainant­company and

contended that the cheuqe, which was lying

in the office was misused. It is contended

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that the respondent­accused is one of the

directors of the complainant­company and

there was no any misappropriation of money

neither any undertaking was given to the

complainant­company. It is contended that

the complainant­company had taken

disadvantage of signed cheque, which was

lying in the office and there was no any

legally enforceable debt pending towards

the complainant­company, the false case

was filed by the complainant­company as

there was a dispute between the directors

of the company.

3.3. To rebut the presumption, the

respondent­accused had examined himself

below Exhibit 4 and also examined the

Chartered Accountant and Auditor of the

complainant­company Mr.Mihir Hasmukhbhai

Shaikh below Exhibit 34.

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3.4. The respondent­accused had also produced

the following documentary evidence in his

defence:

Sr Exhibit Number Description No. 1 Exhibit-21/DW 1 Bank Statement of Complainant Company 2 Exhibit-25/DW 1 Company Master Date 3 Exhibit-26/DW 1 Board report of the complainant-company 4 Exhibit-27/DW 1 Company Audit Report

5. Exhibit-28/DW 1 Company Annual Report

6. Exhibit-29/DW 1 Account statement of father of accused

7. Exhibit-39/DW 1 Account statement of mother of accused

3.5. After considering the evidence laid

before the learned trial Court and the

arguments advanced by the learned

advocates for the respective parties, the

learned trial Court had acquitted the

respondent­accused from the charges on the

ground that the complaint had been filed

by the complainant on behalf of the

complainant­company, which consists four

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directors in which the respondent­accused

is one of them and the complainant had not

produced the authority to file the

complaint against one of the directors

from the other directors of the company

neither produced any resolution, which

gives authority to the complainant to file

the complaint on behalf of the company. It

was held by the learned trial Court that

no seal of the company was made in the

complaint and it was just signed by the

complainant. Neither any averment was made

in the complaint about the personal

knowledge of the transaction done between

the complainant­company and the

respondent­accused. Being aggrieved by the

aforesaid judgment and order, the

complainant had filed the present appeal.

4.Heard the learned advocate Mr.Prit Shah for

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the appellant.

4.1. Learned advocate Mr.Shah submits that

though the complainant­company had proved

the issuance of the cheque and signature

on the cheque of the respondent­accused

and though the presumption, which is in

favour of the complainant­company was not

rebutted by the respondent­accused, the

learned trial Court had acquitted the

respondent­accused from the charges.

Learned advocate Mr.Shah submits that

though the fact, which is proved that the

cheque was issued towards the liability of

the return the misappropriated amount,

the learned trial Court had not believed

the case only on the ground that no

authorization was produced by the

complainant­company.

4.2. It is submitted by the learned advocate

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Mr.Shah that though along with the

certificate below Exhibit 20, the

authority letter was produced, which was

signed by one of the directors, namely,

Mr.S.J.Joshi giving the authority to the

complainant to take necessary action on

behalf of the company, to recover the

amount from the parties and for that to

authorize to sign over the notice, to

lodge complain in the court of law and for

that purpose he had authorized to appoint

an advocate, to sign on Vakalatnama, to

present before the learned Trial, Civil,

District Court/s, to sign on reply, any

defence, to execute affidavit and to

present before the Court in Civil and

Criminal proceedings and also to present

before the police officer and before any

local authority on behalf of the company.

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4.3. Learned advocate Mr.Shah submits that

though the aforesaid authority letter was

produced and proved, the learned trial

Court had discarded the same and acquitted

the respondent­accused from the charges.

4.4. Learned advocate Mr.Shah submits that

the document, which is produced by the

respondent­accused in his defence, was not

proved as there was no any certificate

under Section 65(B)(4) of the Evidence

Act, then also the learned trial Court had

relied on the said document and acquitted

the respondent­accused. To support the

contention that certificate under Section

65(B)(4) is mandatory, learned advocate

relies on the decision rendered by the

Apex Court in case of Ravinder singh @

Kakku vs. State of Punjab passed in

Criminal Appeal No.1307 of 2019 as well as

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relies on the decision of the Apex Court

rendered in case of Smt.J. Yashoda vs Smt.

K. Shobha Rani, passed in Civil Appeal

No.2060 of 2007 and submits that if

secondary evidence is to be given then

first it has to prove that primary

evidence is not available. It is further

contended that if original itself found to

be inadmissible through failure of the

party, who files it to prove it to be

valid, the same party is not entitled to

introduce secondary evidence of its

contents. In order to enable the parties

to produce the secondary evidence, it is

necessary for the parties to prove

existence and execution of the original

document. The conditions laid down in

Section 65 must be fulfilled before

secondary evidence can be admitted.

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4.5. Learned advocate Mr.Shah submits that

certificate under Section 65(B)(4) is a

mandatory requirement of law and in

absence of the same, the documents which

are produced cannot be exhibited or cannot

be said to have been proved, then also,

learned trial Court had relied on the

documents which were produced bythe

respondent­accused in his defence and

acquitted the respondent­accused.

4.6. Therefore, learned advocate Mr.Shah

submits that the appeal, which is filed

against the aforesaid judgment and order

is required to be allowed and the

respondent­accused is required to be

convicted accordingly.

5.Heard the learned advocate for the

complainant­appellant and gone through the

record. The perusal of the findings given by

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the learned Magistrate shows that these have

been given as per the evidence and law. In

noway, the findings can be held as a perverse

or against the evidence and the law, nothing

has been pointed out as to which material

evidence has been listed and which material

evidence has not been considered by the court

below. Nothing has been pointed out as to how

the findings are said to have been perverse

or against the law and what illegality has

been committed by the learned Court below.

6.From the record, this Court finds that the

respondent­accused in his defence took a plea

that he was the director of the company and

for that documentary evidences were produced

below Exhibits 25 to 30. For becoming the

director, the respondent­accused had paid

Rs.5 Lakh from the Bank, the said fact has

been proved by producing the account

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statement of the mother and father below

Exhibit 29 and Exhibit 30. The story created

by the complainant that the respondent­

accused had misappropriated the funds of the

company and to discharge his liability he has

issued the cheque, for that the complainant

has not produced any complaint neither it is

contended. In fact, from the examination of

the Chartered Accountant, which has been done

below Exhibit 37, it suggests that no any

misappropriation of money was done in the

company. Therefore, in such circumstances,

the cheque produced by the complainant cannot

be said to have been given by the respondent­

accused for any legal debt or liability.

7.From the cross examination of the

complainant, it transpires that there were

four directors in the company in which

accused is one of them. It further transpires

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that the complainant had not produced any

authority to file the criminal complaint

against one of the directors from the other

directors of the company. The authority

letter, which is produced showing the single

signature of one of the directors, namely,

Mr.S.J.Joshi, but there was no any

authorization or resolution passed by the

company was produced on record. The judgment,

which was relied upon by the learned advocate

Mr.Shah showing that certificate under

Section 65(B)(4) is mandatory for that there

cannot be any dispute by this Court, however,

in the instant case, which is filed under

Section 138 of the N.I.Act weighed the duty

of the respondent­accused is to rebut the

presumption by producing the evidence, which

may be in the standard of preponderance of

probabilities and not to prove beyond the

reasonable doubt.

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8.This Court has considered the decision

rendered by the Hon'ble Apex Court in the

case of Basalingappa V/s. Mudibasappa

reported in (2019) 5 SCC 418 where summarize

the principle enumerated in paragraph No.25,

which reads as under:

"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:

25.1. Once the execution of cheque is admitted Section 139 of theAct mandates a presumption that the cheque was for the discharge of any debt or other liability.

25.2. The presumption under Section 139is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.

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25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden."

25.5. It is not necessary for the accused to come in the witness box to support his defence."

9.This being an acquittal appeal, as per the

judgment rendered by the Hon'ble High Court

of Gujarat Court in the case of State of

Gujarat V/s. Jitendra C. Thakkar reported in

2017 (4) GLR 3200 wherein it is held that

when two views are possible, the view which

is in favour of the accused is to be

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considered. Relevant paragraph is reproduced

hereinbelow:

"6.10 That in an appeal against acquittal filed under Section 378 of the Code, 1973, as such there is no limitation on the Appellate Court to review the evidence. But at the same time, if on fact as well as on law, conclusion drawn by the trial Court based on appreciation of evidence unless compelling, cogent and substantial reasons appear for interference and when findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable, acquittal is not to be reversed or disturbed. When acquittal is based on the surmises and conjectures and not substantiated by law and evidence on record, an Appellate Court may re-appreciate and review the entire evidence to see that undue benefit is not given to the accused. Now, it is well settled that even if two views are possible, the Appellate Court shall not ordinarily interfere with the judgment of acquittal in a routine manner unless the judgment of the trial Court is per se wrong on facts and on law or perverse, substituting its own views by the High Court is not permissible. That in case of acquittal, it is to be borne into mind by the Appellate Court that there is double presumption in favour of the accused that firstly, presumption of innocence in favour of a guilty on the premise that

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every person should be presumed to be innocent unless he is proved to be guilty by the Court of Law, and secondly, when accused secures an acquittal, such presumption of innocence is reinforced and reaffirmed by the trial Court."

10. In view of the above discussion, this Court

finds that the impugned judgment and order dated

09.11.2022 passed by the learned Judicial

Magistrate First Class, Court No.3, Vadodara in

Criminal Case No.3388 of 2018 is just and proper,

as per law and evidence and does not require any

interference from this Court. Hence, this appeal

is dismissed. Record and Proceedings be sent back

to the concerned Court, forthwith.

(M. K. THAKKER,J) M.M.MIRZA