Gujarat High Court
Shabbirbhai Jummabhai Shaikh ... vs State Of Gujarat on 9 January, 2023
Bench: Nisha M. Thakore
R/CR.MA/20262/2022 ORDER DATED: 09/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 20262 of 2022
In R/CRIMINAL APPEAL NO. 2198 of 2022
With
R/CRIMINAL APPEAL NO. 2198 of 2022
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SHABBIRBHAI JUMMABHAI SHAIKH (DHOBI)
Versus
STATE OF GUJARAT
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Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MH BHATT ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 09/01/2023
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION NO.20262 of 2022:
1. Rule. Learned APP Ms. Bhatt waives service of Rule on
behalf of the respondent No.1 - State.
2. This is an application filed under Section 378(4) of the Code
of Criminal Procedure, seeking leave to appeal to challenge the
judgment and order of acquittal dated 08.06.2022 passed by the
learned 17th Additional Chief Judicial Magistrate, Vadodara, in
Criminal Case No.19760 of 2019.
3. Heard Mr. Zubin Bharda, learned advocate for the applicant
- original complainant. He invited attention of this Court to the
impugned order and submitted that the total amount in dispute is
Rs.91,50,000/- in respect of total 9 cheques as referred in four
R/CR.MA/20262/2022 ORDER DATED: 09/01/2023
different sale deeds executed on 28.03.2018, whereby the
applicant who is an exclusive owner of the premises, has agreed
to sell in favour of the accused for total sale consideration of an
amount of Rs.9,51,000/-. He further submitted that the accused
were aware about the fact that the premises was occupied by the
tenants and fresh Memorandum of Understanding (MoU) was
subsequently agreed between the parties on 02.04.2018, which
has been brought on record vide Exhibit 10. He also relied upon
the agreement to sell dated 14.11.2017. By referring and relying
upon the recitals of the aforesaid documents, he submitted that
there is clear understanding between the parties that an amount of
Rs.1.27 Crores was reserved by the accused to be released only
at the stage of title clearance, which was to be obtained in respect
of the premises. He, therefore, submitted that the trial Court
committed error by not appreciating the aforesaid documents
which are otherwise forming part of the record in correct
perspective and committed error by recording findings that the
transaction entered upon does not fulfill the criteria of "legally
enforceable debts" in order to attract the offence punishable under
Section 138 of the Negotiable Instruments Act.
4. Having heard Mr. Bharda, learned advocate for the applicant,
prima facie, this Court finds upon submissions being made by the
learned advocate for the applicant that once the registered sale
deeds have been executed and the disputed amount of
Rs.91,50,000/- being offered as part of the sale consideration, the
accused having derived the title of the ownership, is under
obligation to pay the consideration amount, more particularly, in
the facts of the case when there is no dispute between the parties
with regard to the execution of MoU dated 02.04.2018, wherein it
R/CR.MA/20262/2022 ORDER DATED: 09/01/2023
has been agreed between the parties to reserve separate amount
of Rs.1.27 Crores as against the tittle clearance certificate to be
obtained.
Hence, this application seeking leave to appeal is granted.
Rule is made absolute.
ORDER IN CRIMINAL APPEAL NO.2198 of 2022:
ADMIT. Learned APP Ms. M.H. Bhatt waives service of
notice of admission on behalf of respondent-State.
Issue bailable warrant of in the sum of Rs. 10,000/-
against private respondent.
Registry is directed to call for R & P on or before 31.01.2023.
List this appeal for hearing on 09.02.2023.
(NISHA M. THAKORE,J)
Y.N. VYAS
