Gujarat High Court
Jignesh Chimanlal Ka. Patel vs State Of Gujarat on 31 March, 2023
Bench: Nisha M. Thakore
R/CR.MA/21907/2022 ORDER DATED: 31/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 21907 of 2022
In R/CRIMINAL APPEAL NO. 2381 of 2022
With
R/CRIMINAL APPEAL NO. 2381 of 2022
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JIGNESH CHIMANLAL KA. PATEL
Versus
STATE OF GUJARAT
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Appearance:
DARSHIT R BRAHMBHATT(8011) for the Applicant(s) No. 1
for the Respondent(s) No. 2
Mr. Soham Joshi, Addl. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 31/03/2023
ORAL ORDER
1.0. Heard Mr. Darshit Brahmbhatt, learned advocate for the
applicant and Mr. Soham Joshi, learned Additional Public
Prosecutor for the respondent State. Rule returnable forthwith.
Mr. Joshi, learned Additional Public Prosecutor waives service of
Rule on behalf of the respondent State.
2.0. This is an application filed by the applicant - original
complainant under Section 378(4) of the Code of Criminal
Procedure seeking leave to appeal against the judgment and
order of acquittal dated 3.10.2022 passed by the learned
Judicial Magistrate, First Class, Dakor in Criminal Case No.675
of 2004, whereby, learned Magistrate has recorded the acquittal
of the respondent no.2- original accused for the offence
punishable under Section 138 of the Negotiable Instruments Act.
R/CR.MA/21907/2022 ORDER DATED: 31/03/2023
3.0. It is the case of the complainant that the complainant was
knowing the accused as friend of his son and due to friendly
relation, the accused had approached the complainant seeking
financial help, to which, the complainant had advanced an
amount of Rs.3 lakhs. After sometime, the complainant had
demanded the money back from the accused and accused had
given cheque bearing no.666367 of Rs.3 lakhs from his Account
bearing No.001190008017 with the State Bank of India, Dakor
Branch on 07.06.2004. It is the case of the complainant that the
said cheque was first time deposited on 07.06.2004 and the said
cheque was returned back on 09.06.2004. It is the case of the
complainant that the accused has assured to make good
payment and had asked the complainant to present the said
cheque and the complainant had accordingly presented the said
cheque on 24.07.2004. The said cheque was again returned back
by the concerned Bank with the endorsement of "funds
insufficient" on 26.07.2004. In such circumstance, the
complainant had proceeded with issuance of statutory notice as
per the provisions of the Negotiable Instruments Act, which was
sent on the known address of the respondent no.2 accused. The
said demand notice was received by the accused. However,
neither the reply was given by the accused nor amount was paid
by the accused. In such circumstances, the complainant was
constrained to approach the Court of learned Judicial
Magistrate, First Class, Dakor by lodging complaint for the
offence under Section 138 of the Negotiable Instruments Act. The
said complaint was registered as Criminal Case No.675 of 2004
on 23.09.2004.
R/CR.MA/21907/2022 ORDER DATED: 31/03/2023
4.0. Mr. Brahmbhatt, learned advocate has invited attention of
this Court to the findings and reasons recorded by the trial
Court while recording order of acquittal. He has submitted that
learned Magistrate on erroneous interpretation of provision of
Section 138 of the Negotiable Instruments Act has solely rejected
the complaint on the technical ground that the mandatory
ingredients of Section 138 of the Negotiable Instruments Act has
not been complied with. He further submitted that the learned
Magistrate has recorded findings that the statutory notice raising
demand was addressed on 09.08.2004 which was not within
prescribed period of 30 days from the dishonored of the cheque
at the very first instance i.e. 17.06.2004. In support his
submission, he has relied upon the decision of the Hon'ble
Supreme Court in the case of Sadanandan Bhadran vs.
Madhavan Sunilkumar reported in (1998) 6 SCC 514. Mr.
Brahmbhatt, learned advocate has fairly invited attention of this
Court to the fact that the aforesaid decision has been
subsequently overruled by the Hon'ble Supreme Court in the
case of MSR Leathers vs. S. Palaniappan and Another reported
in (2013)1 SCC 177. However, he submitted that the principle of
law carved out in both the aforesaid decisions clearly postulates
that it would be the cause of action would arise for the offence
upon failure of payment of the amount within 15 days of
issuance of statutory notice. He, therefore, urge this Court to
grant leave to appeal.
5.0. Considering the submissions made by the learned advocate
for the applicant- original complainant and grounds raised in the
memo of appeal, prima facie, the Court finds that the learned
R/CR.MA/21907/2022 ORDER DATED: 31/03/2023
Magistrate committed error in recording the findings that the
cause of action shall arise within a period of 30 days from the
date of dishonored of cheque at the first instance, considering
the ratio laid down by the Hon'ble Supreme Court in the case of
MSR Leathers (supra). Apt would be to referred to the decision of
the Hon'ble Supreme Court in the case of Sicagen Indian
Limited vs. Mahindra Vadineni and others reported in (2019) 4
SCC 271 wherein the Hon'ble Supreme Court after applying the
rule of interpretation and considering the provision of Section
138 had held that the prosecution based on second or
successive default in payment of cheque amount can be
considered for attracting offence under Section 138 of the
Negotiable Instruments Act. Hence, the present application is
allowed and Leave to Appeal, as prayed for, is hereby granted.
Rule is made absolute to the aforesaid extent.
Order in Criminal Appeal:
Admit. Learned Additional Public Prosecutor waives service
of admission on behalf of respondent State. Issue bailable
warrant in sum of Rs.10,000/- against private respondent no.2.
Respondent no.2 be served through the concerned police station.
Registry is directed to call for the Record and Proceedings
of the case from the concerned Court so as to reach this Court
on or before 28.4.2023. Registry is further directed to notify the
Criminal Appeal for admission hearing on 28.4.2023.
(NISHA M. THAKORE,J)
KAUSHIK J. RATHOD
