Gujarat High Court
Sanjaybhai Gordhanbhai Pandav vs State Of Gujarat on 6 July, 2023
Bench: Nisha M. Thakore
R/CR.MA/11473/2023 ORDER DATED: 06/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11473 of 2023
In R/CRIMINAL APPEAL NO. 1558 of 2023
With
R/CRIMINAL APPEAL NO. 1558 of 2023
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SANJAYBHAI GORDHANBHAI PANDAV
Versus
STATE OF GUJARAT
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Appearance:
MS MEDHA N PANDYA(6171) for the Applicant(s) No. 1
for the Respondent(s) No. 2
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. Leave to amend. Learned advocate Ms. Medha N. Pandya is
permitted to place on record the relevant documents.
2. Heard Ms. Pandya, learned advocate for the applicant -
original complainant.
3. Rule returnable forthwith. Learned APP waives service of
Rule on behalf of the respondent No.1 - State.
4. This is an application under Section 378(4) of Code of
Criminal Procedure, challenging the judgment and order of
acquittal dated 29.04.2023 passed by the learned Special Judge,
(N.I. Act), Surat, in Criminal Case No.36210 of 2019. By the said
judgment and order, the learned Special Judge has proceeded to
R/CR.MA/11473/2023 ORDER DATED: 06/07/2023
record acquittal of respondent No.2 - original accused for the
offence punishable under Section 138 of the Negotiable
Instruments Act.
4. Ms. Pandya, learned advocate has invited attention of this
Court to the reasons assigned by the learned Special Judge, while
recording order of acquittal. She has submitted that though the
cogent material in the nature of license issued in the name of
complainant is brought on record vide Exhibit 19, the learned
Special Judge, on erroneous evaluation of the evidence, has not
entertained the complaint by recording that the complaint has not
been filed in the name of proprietorship firm. She has submitted
that the complainant is a sole proprietor and the said fact is borne
out from the license. She has further submitted that appropriate
averments have also been made in the legal notice addressed to
the respondent accused. Much emphasize has been made on the
fact that the respondent - accused has not disputed her signature
on the cheque. In such circumstances, the presumption has arisen
in favour of the complainant in terms of Sections 118(a) and 139 of
the N.I. Act and in absence of any defence being raised by the
respondent - accused or any contrary fact being brought on
record, the learned Special Judge ought not to have dismissed the
complaint under Section 138 of the N.I. Act.
5. Ms. Pandya, learned advocate has relied upon the following
authorities:
1. Shanish Kumar Misra Vs. State of U.P.
(High Court of Judicature at Allahabad)
(Order dated 30.10.2014 passed in Criminal Misc.
Application No.2490 of 2005)
R/CR.MA/11473/2023 ORDER DATED: 06/07/2023
2. M.M. Lal Vs. State NCT of Delhi
(Delhi High Court)
(Order dated 14.09.2012 passed in Crl. L.P. No.290 of
2010)
3. Suman Devi Vs. Chhatarpal
(Punjab and Haryana High Court)
(Order dated 04.01.2023 passed in CRM. M. No.6036 of
2018)
4. Moinuddin Abdul Sattar Shaikh Vs. Vijay D. Salvi
reported in 2015(9) SCC 622,
6. Considering the submissions made by the learned advocate
Ms. Pandya and the grounds raised in the appeal, prima facie, this
Court finds that the fact of the present applicant - original
complainant being sole proprietor of the firm has come on record
in the form of license, which has remained uncontroverted.
7. As held by the Hon'ble Apex Court in the case of Shankar
Finance & Investment Vs. State of Andhra Pradesh reported in
AIR 2009 SC 422, when the individual carries business as sole
proprietor then even the criminal complaint under Section 138 of
the N.I. Act is held maintainable by taking cognizance of the
requirement under Section 142 of the Act.
8. Considering the aforesaid principle laid down, the matter
requires consideration. Hence, present application for leave to
appeal is granted. Rule is made absolute.
R/CR.MA/11473/2023 ORDER DATED: 06/07/2023
CRIMINAL APPEAL NO.1558 of 2023:
ADMIT. Learned APP waives service of notice of admission
on behalf of the respondent No.1 - State.
Issue bailable warrant of in the sum of Rs. 10,000/-
against private respondent.
R & P to be called for.
(NISHA M. THAKORE,J)
Y.N. VYAS
