Gujarat High Court

Nareshbhai Vashrambhai Parmar vs State Of Gujarat on 11 October, 2023

Bench: M. K. Thakker

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      R/CR.MA/7260/2023                                  ORDER DATED: 11/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 7260 of
                            2023

                     In R/CRIMINAL APPEAL NO. 977 of 2023

                                        With
                          R/CRIMINAL APPEAL NO. 977 of 2023
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                      NARESHBHAI VASHRAMBHAI PARMAR
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR PARESH A. PATEL(5456) for the Applicant(s) No. 1
KHUSHI P JADAV(7351) for the Respondent(s) No. 2,3,4
MR ROHANKUMAR M GAUSWAMI(13050) for the Respondent(s) No. 2,3,4
MS DIVYAGNA JHALA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                               Date : 11/10/2023
                             COMMON ORAL ORDER

ORDER IN CRIMINAL MISC. APPLICATION:-

1. This is an application filed by the applicant - original

complainant seeking leave to prefer an appeal under Section

378 of the Code of Criminal Procedure, 1973, challenging the

judgment and order dated 19.11.2022 passed by the learned

2nd Additional Senior Civil Judge, Palanpur, District

Banaskantha in Criminal Case No.1159 of 2018, by which, the

learned trial Court has exercised the power under Section-

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245(2) of the Cr.P.C. and discharged the respondent -

accused from the charges levelled against them.

2. It is the case of the complainant that respondent -

accused nos.2 and 3 are the son of the accused no.1 and all

are the relatives of the complainant. Before 05 years, for the

purpose of construction of their house, the complainant had

advanced the loan of Rs.10 lakh to the respondent accused.

The amount of the loan was paid by the complainant to the

accused through the different cheque, which was encashed by

the respondent no.3. At the time of taking loan, an assurance

was given to repay the same within period of one year and an

undertaking was also given on 19.03.2013, however, the

respondents - accused did not abide by said promise and

failed to make the payment to the complainant. On demanding

the money, three different cheques were issued in favour of

the complainant of Dena Bank, Palanpur Branch, which was

dishonoured with endorsement of 'insufficient fund'.

Therefore, three different complaints came to be filed by the

complainant being Criminal Case Nos.1782 of 2015; 1857 of

2015 and 1903 of 2015. At the end of the trial, the accused

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no.3 was convicted and was imposed sentence. The

complainant had again demanded money from the accused,

however, the said demand was refused, and no money was

paid. It was conveyed by the respondent - accused that they

would served the sentence, but would mot make payment of

the cheque amount.

2.1 On feeling cheated, the complainant had filed the

impugned complaint for the offence punishable under

Sections-406, 420, 504, 506(2) and 120B of the IPC. After

recording the verification, an order was passed by the learned

Magistrate for police investigation. A report was submitted by

the Police Officer below Exh.4 on 31.12.2017. On considering

the report, cognizance was taken and process was issued

under Section-204 of the Cr.P.C. Accused appeared and the

preliminary evidence was led by the complainant by

examining the four witnesses below Exh.16, 26, 27 and 30 and

request was made to frame the charge against the

respondents accused for the alleged sections. The

respondents - accused had given the application seeking

discharge under Section-245 on the ground that the cheques

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were drawn by accused no.2 alone i.e Mukeshbhai Maghabhai

and for that, he had faced the trial and conviction also. The

judgment rendered in the Criminal Cases, which was passed

under Section-138 of N.I. Act, was also produced at mark 3/5

to 3/7. After considering the argument advanced by both the

parties in the application for seeking discharge, the learned

trial Court passed an order below Exh.1 allowing the

application and discharging the accused under Section-245(2)

of the Cr.P.C. for the alleged offence. The said order is under

challenge before this Court under this criminal appeal.

3. Heard learned advocate Mr. Paresh Patel for the

applicant - original complainant; learned advocate Mr.

Rohankumar Gauswami for the respondents - accused and

leaned APP Ms. Divyagna Jhala, for the respondent - State.

4. Before entering into the merits, learned advocate for the

respondents - accused has taken preliminary objection with

regard to the maintainability of this appeal challenging the

order under Section-245(2) of the Cr.P.C.

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5. Learned advocate for the applicant submits that against

the order allowing the discharge under Section-245 of the

Cr.P.C., the only remedy before this Court is by way of

preferring this appeal under Section-378 as granting

discharge would amount to giving acquittal to respondents

accused for alleged charges and therefore, the appeal is

maintainable in the eye of law.

6. On the other-hand, learned advocate for the respondents

- accused submitted that there are two different provisions in

the Code of Criminal Procedure for discharge and acquittal.

The order under challenge is passed at the stage of framing of

charge under Section-245 of the Cr.P.C. Therefore, the

remedy would lie elsewhere not before this Court by way of

the appeal under Section-378 of the Cr.P.C.

7. Considering the submissions advanced by the learned

advocates for the respective parties and before entering into

the aspect of the maintainability, the relevant provision is

required to be looked into.

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Section-245 of Cr.P.C. reads as under:-

245. When accused shall be discharged. (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

Section 378 of Cr.P.C. reads as under:-

378. Appeal in case of acquittal. - (1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),--

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.

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(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal--

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.

(3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six

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months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub- section (2).

8. Perusing the order, which was impugned before this

Court, this Court finds that the application was given by the

respondents - accused before framing of charge seeking

discharge from the alleged offence, which was ordered in

favour of the respondents - accused. In the opinion of this

court, under Section-245 of Cr.P.C., accused would be

discharged when the competent court believe the trial will

ineffective. At the same time, at the time of discharging the

accused, there would not be requirement for scrutinizing any

evidence. The test of prima-facie case is to be appeal. There is

deference between the 'acquittal' and 'discharge'. An

acquittal is verdict in criminal trial that accused is not guilty