Gujarat High Court
Kishoriba Virbhadrasinh ... vs State Of Gujarat on 14 March, 2023
Bench: A.Y. Kogje
R/CR.MA/12837/2022 ORDER DATED: 14/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 12837 of 2022
In R/CRIMINAL APPEAL NO. 1387 of 2022
With
R/CRIMINAL APPEAL NO. 1387 of 2022
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KISHORIBA VIRBHADRASINH CHUDASMA
Versus
STATE OF GUJARAT
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Appearance:
MR EKANT G AHUJA(5323) for the Applicant(s) No. 1
MR SAMIR B GOGDA(11306) for the Respondent(s) No. 2
MR H K PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 14/03/2023
ORAL ORDER
ORDER IN CRIMINAL MISC.APPLICATION:-
1. This application is filed for grant of Leave to Appeal against
the acquittal recorded by the 6th Additional Chief Judicial
Magistrate, Gandhinagar vide order dated 21.12.2017 passed in
Criminal Case No.14998 of 2006.
2. By the aforesaid order, the respondent-accused is
acquitted from the offence under Section 138 of the Negotiable
Instruments Act.
3. Learned advocate for the applicant has submitted that an
error is committed by the Trial Court in concluding that the
R/CR.MA/12837/2022 ORDER DATED: 14/03/2023
respondent-accused has successfully rebutted the presumption
merely on the ground that 2 cheques have been paid totaling of
Rs.5,75,000/- and that the cheque in question is a cheque,
which was numbered in between the aforesaid 2 cheques, and
therefore, presume that the same was towards the security and
not in discharge of legally enforceable debt.
4. Learned advocate for the applicant has submitted that
nature of transaction was such where the applicant had paid an
amount to the respondent-accused on account of their
relationship partly was to be repaid by transferring a plot of land
which did not work out and further amount was paid by the
applicant so as to clear the plot which ultimately did not work
out and towards the discharge of the amount then due and
payable, the cheque in question was issued.
5. The Court has taken into consideration the relevant
paragraphs in the impugned judgment and order particularly in
Paragraph No.17, wherein the Court has held that the
presumption is rebutted on the basis of 2 cheques each of
amounting of Rs.4,00,000/- and Rs.1,75,000/-, respectively
against the amount of Rs.10 lacs which again is a dues which
are accepted by the Court. The requirement for invoking
provisions of Section 138 of the Negotiable Instruments Act is
either the legal enforceable debt or other dues, and therefore,
apparently the balance amount of the total amount paid by the
applicant to the respondent-accused would be treated as other
dues towards the discharge of which the cheque in question
appears to have issued.
R/CR.MA/12837/2022 ORDER DATED: 14/03/2023
6. The stand for rebutting the presumption was not taken
even in the reply to the statutory notice, and therefore, appears
to be an afterthought.
7. In view of aforesaid, the Court finds sufficient reason to
allow the present application. Therefore, present application for
grant of Leave to Appeal is allowed.
ORDER IN CRIMINAL APPEAL:-
Appeal is admitted.
Issue bailable warrant in the sum of Rs.5000/- against the
respondent-original accused.
(A.Y. KOGJE, J)
GIRISH
