Kamleshkumari Panchamsingh ... vs State Of Gujarat
2023 Latest Caselaw 97 Guj

   R/CR.MA/16365/2022                         ORDER DATED: 04/01/2023




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL MISC.APPLICATION NO. 16365 of 2022
             In R/CRIMINAL APPEAL NO. 1756 of 2022
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      KAMLESHKUMARI PANCHAMSINGH THAKUR (THAKORE)
                        Versus
                   STATE OF GUJARAT
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Appearance:
MR KV SHELAT(834) for the Applicant(s) No. 1
for the Respondent(s) No. 2
Ms. Asmita Patel, Addl. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
                  Date : 04/01/2023
                    ORAL ORDER

1.0. Heard Mr. Love S Modi, learned advocate for Mr. K.V. Shelat, learned advocate for the applicant- original complainant.

2.0. This is an application under Section 378(4) of the Code of Criminal Procedure seeking leave to appeal to challenged the impugned judgment and order of acquittal dated 4.2.2021 passed by the learned Chief Judicial Magistrate, First Class, Dahod rendered in Criminal Case No.1438 of 2015. The learned trial Court by the aforesaid order has acquitted the present respondent no.2 for the offence punishable under Section 138 of the Negotiable Instruments Act.

3.0. Learned advocate for the applicant has placed on record the copy of the evidence of the original complainant, which is taken on record. Mr. Modi, learned advocate for the applicant, at the outset, has invited attention of the Court to the reasons and findings recorded by the trial Court while passing the impugned

R/CR.MA/16365/2022 ORDER DATED: 04/01/2023

judgment and order of acquittal, he submitted that the trial Court has unnecessarily shifted burden on the original complainant and has committed error in not believing the evidence which has come on record during her cross- examination. He invited attention of the Court to the cross- examination of the original complainant and submitted that the complainant had in fact offered sufficient explanation with regard to her financial ability. He submitted that the property in the nature of land situated in Utter Pradesh was sold by registered sale deed dated 22.7.2013, it was during the period when the disputed amount was given by loan to the accused- respondent no.2 herein. He further submitted that the specific question was put to the original complainant with regard to source of income, to which, the original complainant has offered explanation by referring to the aforesaid sale and has specifically submitted before the trial Court that the husband who is a retired employee receiving pension had suffered from paralysis and had given power to attorney to his son and son had executed sale deed, the amount of which received in cash was handed over to the original complainant. He further submitted invited attention of the Court to the judgment of the Hon'ble Supreme Court in the case of Basalingappa vs. Mudibasappa reported in (2019) 5 SCC 418 and by referring to para 26, he submitted that it was on peculiar facts where during the cross examination the complainant had failed to offer explanation to the financial capacity and it was in that peculiar facts in absence of no satisfactory reply given by the complainant the Court had concluded that the complainant had failed to prove the case. He further submitted that once the signature on the cheque was not disputed by the accused, a presumption has arisen in terms of

R/CR.MA/16365/2022 ORDER DATED: 04/01/2023

Section 139 that the cheque was issued in discharge of debt or liability. The question then would be to look into is as to whether any probable defence was raised by the accused. In the given case, in the cross-examination when the financial capacity of the original complainant has been questioned, however the original complainant has offered satisfactory explanation. In such circumstances, the trial Court ought to have accepted the case of the complainant. He further relied upon the decision of the Hon'ble Supreme Court in the case of P.Rasiya vs. Abdul Nazer and Another reported in 2022 SCC Online SC 1131.

4.0. Considering the aforesaid submissions, this Court prima facie finds that the initial burden is discharged by the complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, onus was upon the accused to prove contrary that the cheque was not for any debt or liability. The presumption under Section 139 of the Negotiable Instruments Act is a statutory presumption and thereafter once the presumption has been drawn that the cheque is issued against the payment of debt or other liability, in that case, it was for the accused to prove contrary. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted.

(NISHA M. THAKORE,J) KAUSHIK J. RATHOD