The Bhildi Nagrik Sharafi ... vs State Of Gujarat
2023 Latest Caselaw 7202 Guj

                                                                                  NEUTRAL CITATION




      R/CR.MA/17174/2022                            ORDER DATED: 03/10/2023

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 17174 of
                             2022

                     In R/CRIMINAL APPEAL NO. 1832 of 2022

                                     With
                       R/CRIMINAL APPEAL NO. 1832 of 2022
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     THE BHILDI NAGRIK SHARAFI SAHAKARI MANDALI LTD. BHILDI THRO
              ASHOKBHAI BHEMABHAI PATEL (CHAUDHARY)
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR ANKIT Y BACHANI(5424) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS. M.H. BHATT, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                Date : 03/10/2023

                                  ORAL ORDER

ORDER IN CRIMINAL MISC. APPLICATION (FOR LEAVE TO APPEAL)

1. Heard Mr. Ankit Bachani, learned advocate on record for the

applicant-original complainant. Learned advocate on record for the

applicant has placed on record the certified copies of the relevant

documents, which are permitted to be taken upon record.

2. Rule returnable forthwith. Learned APP waives service of notice

of rule for and on behalf of respondent-State.

3. This application is filed under Section 378(4) of Cr.P.C. seeking

leave to appeal challenging the judgment and order dated 16.05.2022

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R/CR.MA/17174/2022 ORDER DATED: 03/10/2023

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passed by learned 3rd Additional Judicial Magistrate First Class, Deesa

in Criminal Case No.2919 of 2019. By the said judgment and order, the

learned Magistrate has recorded the order of acquittal of respondent-

accused for the offence punishable under Section 138 of the N.I. Act.

4. Pursuant to the order dated 27.09.2023, responsible officers

namely Shantibhai R. Trivedi (M.D.) and Mr. Ashok Patel (Manager) of

The Bhildi Nagrik Sharafi Sahakari Mandali Ltd. have remained present

before this Court and has assisted the Court in explaining the relevant

entries forming part of the statement of account.

5. At the outset, learned advocate for the applicant has drawn

attention of this Court to the statement of account, which is produced

on record vide Exh.23. By referring to the aforesaid document, learned

advocate for the applicant has submitted that the cash credit facility

was availed by the respondent-accused for an amount of Rs.5 Lakhs,

which as sanctioned on 10.09.2012 and the maturity date of such

account was fixed on 10.9.2017. Thus, duration of 60 months was fixed

for repayment of such sanction amount.

5.1 The attention of this Court is invited to the fact that last

amount, which was received towards the interest as reflected in the

said document relates to date 16.01.2017, and thereafter, the

respondent-accused has continuously defaulted in making the

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repayment. The outstanding amount as on date of maturity, comes to

around Rs.7,84,293/-. Learned advocate for the applicant has further

relied upon the document produced on record vide Exh.15, which is

the promissory note executed by the respondent-accused. By

referring to the stipulations of the aforesaid document, the learned

advocate for the applicant has submitted that in absence of any

payment of installment, the interest at the rate of 16% was charged,

which had further attracted the penalty and the charges towards the

expenses made by the applicant-bank towards realization of the

amount in dispute. In such circumstances, the disputed amount as

reflected in the cheque was for Rs.8,58,253/-.

5.2 By referring to the aforesaid documents, learned advocate for

the applicant has submitted that the learned Magistrate committed

serious error in not appreciating the aforesaid document, which

otherwise goes to establish the fact of existence of legally

enforceable debt. Learned advocate for the applicant has relied upon

the judgment of the Hon'ble Apex Court in the case of Sampelly

Satyanarayana Rao vs. Indian Renewable Energy Development

Agency Limited reported in (2016) 10 SCC 458, whereby even the

issuance of security cheque being subsequently presented for

realization of the outstanding loan account attracts the offence

punishable under Section 138 of the N.I. Act. By making the aforesaid

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R/CR.MA/17174/2022 ORDER DATED: 03/10/2023

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submissions, he therefore, urged this Court to grant leave to appeal.

6. Considering the submissions made by learned advocate for the

applicant and having perused the impugned judgment & order as well

as the relevant documents, which have been placed on record for

consideration, prima facie, the Court finds that an arguable case is

made out to admit the appeal. Hence, the present application seeking

leave to appeal is hereby granted. Rule is made absolute.

ORDER IN CRIMINAL APPEAL

1. ADMIT.

2. Notice of admission returnable on 05.03.2024. Learned APP

waives service of notice of admission for and on behalf of respondent-

State.

3. Issue bailable warrant of Rs. 10,000/- against respondent-

accused.

4. Registry is hereby directed to call for Record & Proceedings

before the next date of hearing.

(NISHA M. THAKORE,J) SUYASH SRIVASTAVA