Gujarat High Court
Dankubhai Virabhai Khachar vs H.B.Engineering on 31 March, 2023
Bench: Nisha M. Thakore
R/CR.MA/990/2023 ORDER DATED: 31/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 990 of 2023
In R/CRIMINAL APPEAL NO. 114 of 2023
With
R/CRIMINAL APPEAL NO. 114 of 2023
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DANKUBHAI VIRABHAI KHACHAR
Versus
H.B.ENGINEERING
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Appearance:
MR. R.J GOSWAMI WITH MS KRUPALI N BHATT(9455) for the Applicant(s)
No. 1
RULE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 31/03/2023
ORAL ORDER
Heard Mr. R.J Goswami, learned advocate who has
appeared with Ms. Krupali N. Bhatt for the applicant-
original complainant.
2. This Court had issued Rule which was made
returnable on 1.2.2023. The respondent no. 2 is served
through the concerned Police Station. Despite service
of Rule the respondent has chose not to appear or
contest this application seeking Leave to Appeal.
3. This is an application seeking Leave to Appeal filed
under Section 378 (4) of Code of Criminal Procedure
challenging the judgment and order dated 23.9.2022
R/CR.MA/990/2023 ORDER DATED: 31/03/2023
passed by the learned JMFC, Thangadh in Criminal Case
No. 685 of 2018 by the said judgment and order the
learned Magistrate has recorded acquittal of
respondents herein original accused under Section 138
of the N.I Act.
4. Mr. Goswami, learned advocate has invited the
attention of this Court to the findings and reasons
recorded by the learned Magistrate while recording the
order of acquittal. He has submitted that the applicant-
original complainant had extended financial assistance
to the opponent by availing loan and over draft from
banks / financial institutions during the period of 2013
and 2014.
5. It is further submitted that the said financial
assistance was extended for the purpose of carrying out
the construction work of two police stations and it was
agreed between the parties that on completion of the
the projects, 60 % of the proceeds that may be accrued
shall be paid by the opponent original accused to the
applicant original complainant in lieu of the principal
and interest and the expense bared by the applicant,
reliance is placed upon the order dated 3.9.2013 issued
by the concerned department of Government of Gujarat
granting approval to the project in favour of the
opponent original accused which is placed on record for
R/CR.MA/990/2023 ORDER DATED: 31/03/2023
the first time in the present Appeal as Annexure C.
6. It is further submitted that an amount of Rs
64,14.673/- was due from the original accused for which
various reminders were given ultimately, the accused
had furnished two cheques amounting to Rs 61 lakhs
which was handed over to the complainant. The
aforesaid cheques were submitted before the concerned
bank which were not realised and were returned back
with an endorsement of 'funds insufficient'. In such
circumstances, the complainant was constrained to send
statutory notice under Section 138 of the N.I Act which
was duly served at the known address of the accused.
Inspite of service of legal notice the accused had failed to
make good the payment upon expiry of the notice
period. The complainant was, therefore, constrained to
approach the Court of Judicial Magistrate, First Class by
lodging the complaint against the respondents herein
which was registered as Criminal Case No. 685 of 2018
on 26.11.2018.
7. Mr. Goswami has submitted that the learned
Magistrate upon appreciation of the statement of the
bank account produced by the accused vide Exh. 39 has
disbelieved the case of the complainant by recording the
finding that various amounts have been withdrawn
during the period 2.7.2014 to 31.1.2018 from the
R/CR.MA/990/2023 ORDER DATED: 31/03/2023
account of respondent no.1 by different cheques. The
total amount of cheques of Rs 46,57,000/- has been
diverted in the account of son of the complainant.
8. Mr. Goswami, learned advocate has submitted that
the financial assistance given to the original accused has
come on record in the form of statement of Account of
the complainant which has been produced vide Exh. 36
and 61. The accused has not disputed the signature on
the disputed cheque. In such circumstances, the
learned Magistrate ought to have raised presumption in
favour of the complainant as regards existence of
legally enforceable debt on the date of the presentation
of the cheque. He, therefore, urged this Court to grant
Leave to Appeal.
9. Considering the submissions made by learned
advocate appearing for the applicant-original
complainant and the grounds raised in the memo of
Appeal, pima facie the Court finds that the amount which
is claimed to have set up against the legally enforceable
debt of the complainant cannot be disbelieved at this
stage of grant of leave for the explanation which is
offered by the original complainant that during the
course of the execution of the project the amounts seems
to have been advanced by the complainant to the
accused as relied upon by the complainant based on the
R/CR.MA/990/2023 ORDER DATED: 31/03/2023
statement of bank of the complaint produced at Exh. 36
and 61, hence the present application requires
consideration and is hereby allowed.
Criminal Appeal No. 114 of 2023
ADMIT.
Let the Record and Proceedings be called for.
Bailable warrant be issued upon the respondents
original accused, of an amount of Rs 10,000/- each.
(NISHA M. THAKORE,J)
MARY VADAKKAN
