Gujarat High Court
Harisinh Lakshmansinh Chauhan vs Chandubhai Bhikhabhai Bhanderi on 21 March, 2023
Bench: Nisha M. Thakore
R/CR.MA/897/2022 ORDER DATED: 21/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 897 of 2022
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HARISINH LAKSHMANSINH CHAUHAN
Versus
CHANDUBHAI BHIKHABHAI BHANDERI
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Appearance:
MR MONAL S CHAGLANI(10240) for the Applicant(s) No. 1
MR NIRAV C SANGHAVI(5950) for the Respondent(s) No. 1
MS. VRUNDA C. SHAH, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 21/03/2023
ORAL ORDER
1. Heard Mr. Monal S. Chaglani, learned advocate on record for
the applicant-original complainant, Mr. Nirav C. Sanghavi, learned
advocate on record for the respondent No.1 and Ms. Vrunda C. Shah,
learned APP appearing for respondent-State.
2. Rule returnable forthwith. Learned advocate Mr. Nirav C.
Sanghavi waives service of notice of rule for and on behalf of
respondent No.1 and learned APP Ms. Vrunda C. Shah waives service
of notice of rule for and on behalf of respondent-State.
3. This is an application seeking leave to appeal filed under Section
378(4) of Criminal Procedure Code, 1973, seeking permission of this
Court to challenge the judgment and order of acquittal dated
R/CR.MA/897/2022 ORDER DATED: 21/03/2023
10.04.2019 passed by learned Chief Judicial Magistrate, Junagadh in
Criminal Case No.307 of 2017. By the said judgment and order, the
learned Magistrate has recorded acquittal of respondent No.1 for the
offence punishable under Section 138 of the N.I. Act.
4. Mr. Monal S. Chaglani, learned advocate on record for the
applicant-original complainant, has invited attention of this Court to
the paper book and has referred to and relied upon the agreement
(Exh.16) executed between the complainant and respondent No.1 on
14.02.2017. He has further invited attention of this Court to the
statutory notice (Exh.20) addressed to respondent No.1. He has
submitted that the learned Magistrate committed error by construing
the disputed cheque being treated as security cheque. He has further
invited attention of this Court to the cross examination of the
complainant and has submitted that the learned trial court has
misconstrued the evidence of the complainant by recording finding
that the amount was to be realized after selling of the property. He
has further submitted that the learned trial court has completely
ignored condition No.3 of the agreement, whereby the accused had
assured the complainant about the realization of the amount as and
when cheque is presented for encashment. He therefore, submitted
that in absence of any denial of the signature on the disputed cheque,
learned trial court ought to have raised presumption under Section
R/CR.MA/897/2022 ORDER DATED: 21/03/2023
139 of the N.I. Act with regard to legally enforceable debt existing as
on date of presentation of the cheque. He therefore, urged this Court
to grant present leave to appeal.
5. On the other hand, Mr. Nirav C. Sanghavi, learned advocate on
record for the respondent No.1, has vehemently objected to grant of
this application for leave to appeal. He has supported the impugned
judgment and order of acquittal and has submitted that learned trial
court has rightly taken into consideration the terms incorporated in
the agreement executed between the parties. He has referred to and
relied upon the reply given by the accused to the statutory notice and
has submitted that in absence of the contingency with regard to
selling of the property being arose, the cheque was given by way of
security and cannot be treated as towards the legally enforceable
debt.
6. Considering the submissions made by learned advocates
appearing for the respective parties, this Court is of the opinion that
present application for leave to appeal requires consideration. Hence,
present application for leave to appeal is allowed. Rule is made
absolute.
R/CR.MA/897/2022 ORDER DATED: 21/03/2023
ORDER IN CRIMINAL APPEAL NO. 81 OF 2022
ADMIT.
Learned advocate Mr. Nirav C. Sanghavi waives service of notice
of admission for and on behalf of respondent No.1 and learned APP
Ms. Vrunda C. Shah waives service of notice of admission for and on
behalf of respondent-State.
Registry is directed to notify the Criminal Appeal for final
hearing on 17.04.2023.
Registry is hereby directed to call for Record & Proceedings
before the next date of hearing.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
