Gujarat High Court
Dattubhai Somabhai Panchal vs Altafhusen Gulamhusen Divan on 3 October, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/3602/2022 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. 3602 of
2022
In R/CRIMINAL APPEAL NO. 382 of 2022
With
R/CRIMINAL APPEAL NO. 382 of 2022
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DATTUBHAI SOMABHAI PANCHAL
Versus
ALTAFHUSEN GULAMHUSEN DIVAN
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Appearance:
MR RUTVIJ S OZA(5594) for the Applicant(s) No. 1
MR UMANG R VYAS(5595) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
MS MONALI BHATT ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 2,3
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 03/10/2023
ORAL ORDER
1. Heard Mr. Umang Vyas, learned advocate for the applicant -
original complainant and Mr. Dhruv Dave, learned advocate for the
respondent No.1.
2. Rule returnable forthwith. Learned advocate Mr. Dave
waives service of Rule on behalf of the respondent No.1 - original
accused and learned APP waives service of Rule on behalf of the
respondent No.2 - State.
3. This application is filed under Section 378(4) of Code of
Criminal Procedure, seeking special leave to appeal against the
judgment and order dated 31.12.2021 passed by the learned
Principal Senior Civil Judge & Additional Chief Judicial Magistrate,
NEUTRAL CITATION
R/CR.MA/3602/2022 ORDER DATED: 03/10/2023
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Jaghadiya, Bharuch, in Criminal Case No.707 of 2014. By the said
judgment and order, the learned Magistrate has proceeded to
record the acquittal of the present respondent - original accused
for the offence alleged under Section 138 of the Negotiable
Instruments Act.
4. Learned advocate for the applicant has invited attention of
this Court to the reasons assigned, more particularly, the issue
No.2, wherein the learned Magistrate has mainly on the ground of
financial capacity to lend an amount of Rs.2.25 Lakhs to the
accused, being not established, hence, recorded acquittal of the
present respondent - accused. It is submitted by the learned
advocate on record for the applicant that because of friendly terms,
the applicant had lent hand loan amount of Rs.2,25,000/- to the
respondent - accused from his own saving. It was assured by the
respondent that the aforesaid amount shall be repaid. However,
inspite of repeated demands being raised, the respondent failed to
repay such amount. Later on, a cheque dated 01.04.2014 drawn in
favour of the present applicant, which came to be presented for
realization on 02.04.2014 in the concerned bank. On same day,
the cheque was returned back with an endorsement of "Funds
insufficient". In such circumstances, the applicant was constrained
to initiate the proceedings by issuing legal notice dated
04.04.2014, which was duly served upon the known address of the
respondent - accused. Though sufficient time was granted, the
respondent No.1 had failed to make payment nor had responded
to the legal notice. This has led the applicant to lodge the
complaint under Section 138 of the Negotiable Instruments Act,
which was registered as Criminal Case No. 707 of 2014 with the
Court of learned Principal Senior Civil Judge and Additional Chief
NEUTRAL CITATION
R/CR.MA/3602/2022 ORDER DATED: 03/10/2023
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Judicial Magistrate, Jhagdiya.
5. The learned advocate for the applicant by drawing the
aforesaid fact has submitted that in absence of any response
being not given to the legal notice, learned Magistrate ought not
have taken into consideration the aspect of financial capacity,
which according to him, was for the first time raised at the stage of
cross-examination of the complainant. Learned advocate has
relied upon the decision in the case of Tedhi Singh Vs. Narayan
Dass Mahant reported in (2022) 6 Supreme Court Cases 735
and has urged this Court to grant leave to appeal. He has pointed
out the fact that once issuance of cheque was not disputed neither
signature denied, the presumption had arose in favour of the
applicant that the cheque was issued towards discharge of legally
enforceable debt and in absence of any defence being raised, the
siad presumption has remained in tact, which according to him
would attract the offence u/s. 138 of the Negotiable Instruments
Act.
6. Mr. Dave, learned advocate for the respondent accused has
vehemently objected to grant of leave to appeal. He has relied
upon relevant observations of the learned Magistrate, more
particularly, on the evaluation of cross-examination of the
complainant, wherein the preponderance of probabilities has been
brought on record by the respondent. He further submitted that in
absence of any valid explanation being offered against source of
funds of the disputed amount as alleged to have been handed over
to the respondent - accused, the learned Magistrate has rightly not
entertained the complaint. Learned advocate has relied upon the
judgment of the Hon'ble Supreme Court in the judgment of
NEUTRAL CITATION
R/CR.MA/3602/2022 ORDER DATED: 03/10/2023
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Rajaram S/o Sriramulu Naidu (since deceased) Through L.Rs.
Versus Maruthachalam (Since Deceased) Through L.Rs
reported in 2023 SCC Online 648 for the proposition of law that
the defence raised by the respondent when satisfies standards of
preponderance of probabilities, it was for the complainant to prove
his case beyond reasonable doubt.
7. Considering the submissions of the learned advocate on
record for the respective parties and having perused the impugned
judgment and order of acquittal, prima facie, this Court finds that
an arguable case made out for consideration of this Court as to
whether the approach of the learned Magistrate in permitting the
issue of financial capacity being raised for the first time at the
stage of cross-examination is permissible and whether the defence
raised by the accused as contended meet standards of
preponderance of probability. Hence, this application seeking
leave to appeal is hereby allowed. Rule is made absolute.
CRIMINAL APPEAL NO.382 of 2023:
ADMIT. Learned advocate Mr. Dave waives service of notice
of admission on behalf of the respondent No.1 and learned APP
waives service of notice of admission on behalf of the respondent
No.2 - State.
Let R & P be called for.
(NISHA M. THAKORE,J)
Y.N. VYAS
