Gujarat High Court
Vivekkumar Bipinchandra Vyas ... vs State Of Gujarat on 6 July, 2023
Bench: Nisha M. Thakore
R/CR.MA/1483/2022 ORDER DATED: 06/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1483 of 2022
In R/CRIMINAL APPEAL NO. 126 of 2022
With
R/CRIMINAL APPEAL NO. 126 of 2022
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VIVEKKUMAR BIPINCHANDRA VYAS THROUGH POA CHIRAG
BIPINCHANDRA VYAS
Versus
STATE OF GUJARAT
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Appearance:
KAUSHAL S JANI(7627) for the Applicant(s) No. 1
MR. SHIVANG S LALANI(7034) for the Applicant(s) No. 1
MR BHAVESH J PATEL(6801) for the Respondent(s) No. 2,3
MR HARDIK MEHTA ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 06/07/2023
ORAL ORDER
1. Heard Mr. Kaushal Jani, learned advocate for the applicant -
original complainant, Mr. Bhavesh Patel, Mr. Hardik Mehta,
learned APP for the respondent No.1 - State and learned advocate
for the respondent Nos.2 and 3 - original accused.
2. This application is filed under Section 378(4) of the Code of
Criminal Procedure, seeking leave to appeal against the impugned
judgment and order dated 30.10.2021 passed by the learned 2 nd
Additional Civil Judge and JMFC, Vadodara, in Criminal Case
No.41445 of 2018. By the said judgment and order, the learned
Magistrate has proceeded to record the order of acquittal of the
respondent No.2 for the offence punishable under Section 138 of
the Negotiable Instruments Act.
R/CR.MA/1483/2022 ORDER DATED: 06/07/2023
3. Mr. Jani, learned advocate has invited attention of this Court
to the reasons assigned by the learned Magistrate. He has invited
attention of this Court to the order dated 27.11.2019 passed below
Exhibit 45 and 46 and has submitted that the learned Magistrate
has proceeded to record the acquittal, while taking into
consideration the fact that the complaint has been filed through
Power of Attorney holder. The learned Magistrate has taken into
consideration the admission of the Power of Attorney holder in his
cross-examination that he did not have any personal knowledge
about the transactions entered between the parties. At one stage,
the learned Magistrate has relied upon the judgment of the Hon'ble
Apex Court in the case of Shankar Finance & Investment Vs.
State of Andhra Pradesh reported in AIR 2009 SC 422 and has
arrived at the conclusion that the complaint through the Power of
Attorney holder is maintainable. He has further submitted that the
cogent material has been brought on record to establish the
transactions between the parties. The very fact that the payment
was made through the RTGS and through the cheque and the
agreement executed between the parties is sufficient to prove the
fact that there exist land transaction between the parties and the
disputed cheque was given to the original complainant against
such legally enforceable debt. He has further invited attention of
this Court to the fact that the respondents - accused have failed to
respond to the statutory notice. Even no specific defence has been
raised under Section 313 of Cr.P.C. by disputing the aforesaid
cogent material being brought on record by the complainant. In
such circumstances, the learned Magistrate ought to have
accepted the fact that the basic ingredients of Section 138 has
been complied with. He, therefore, urged this Court to grant leave
to appeal.
R/CR.MA/1483/2022 ORDER DATED: 06/07/2023
4. Mr. Patel, learned advocate has appeared for the
respondents - accused. He has relied upon the reasons recorded
by the learned trial Court, more particularly the fact that the original
complainant has not entered into witness box. In such
circumstances, no error is committed by the learned Magistrate in
passing the impugned order of acquittal.
5. Having heard the learned advocates appearing for the
respective parties and considering the material more particularly
the agreement entered into between the parties, which has come
on record vide Exhibit 7 and 8 corroborated by the entries reflected
in passbook of the complainant, which is produced on record vide
Exhibit 9, prima facie, goes to suggest that the parties have
entered into the land deal, whereby the amount of Rs.26,50,000/-
has been paid to the respondents - accused. The aforesaid
evidence has remained unchallenged by the accused. In absence
of any contrary being proved by the accused, the presumption
derived under Section 118(a) and Section 139 of the N.I. Act
remained intact and the evidential burden continued on accused.
The Court finds that this matter requires consideration. Hence,
present application seeking leave to appeal is granted. Rule is
made absolute.
CRIMINAL APPEAL No.126 of 2022:
ADMIT. Learned APP waives service of notice of admission
on behalf of the respondent No.1 - State and learned advocate Mr.
Patel waives service of notice of admission on behalf of the
respondent Nos.2 and 3 - original accused.
R/CR.MA/1483/2022 ORDER DATED: 06/07/2023
R & P to be called for.
(NISHA M. THAKORE,J)
Y.N. VYAS
