Gujarat High Court
Lila Polymers Pvt. Ltd. Thro ... vs State Of Gujarat on 5 September, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/2710/2023 ORDER DATED: 05/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 2710 of 2023
In R/CRIMINAL APPEAL NO. 303 of 2023
With
R/CRIMINAL APPEAL NO. 303 of 2023
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LILA POLYMERS PVT. LTD. THRO PANKAJ NAVNITLAL BHAVSAR
Versus
STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1
MR. JAY M THAKKAR(6677) for the Respondent(s) No. 2
MS MONALI BHATT ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 05/09/2023
ORAL ORDER
1. Heard Mr. P.P. Majmudar, learned advocate for the applicant
- original complainant and Mr. Jay Thakkar, learned advocate for
the respondent No.2 - original accused.
2. Rule returnable forthwith. Learned APP waives service of
Rule on behalf of the respondent No.1 - State and learned
advocate Mr. Thakkar waives service of Rule on behalf of the
respondent No.2 - original accused.
3. This application is filed under Section 378(4) of the Code of
Criminal Procedure against the judgment and order dated
28.11.2022 by the learned 11th Additional Chief Judicial Magistrate,
Vadodara, in Criminal Case No.42497 of 2012, acquitting the
respondent - original accused for the offence punishable under
Section 138 of the Negotiable Instruments Act.
NEUTRAL CITATION
R/CR.MA/2710/2023 ORDER DATED: 05/09/2023
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4. Learned advocate on record for the applicant has submitted
that the learned Magistrate has failed to appreciate the cogent
material, which has been brought on record though in the form of
secondary evidence, which goes to support the case of the original
complainant. The attention of this Court is invited to the relevant
documents being placed in the form of paper book. It is submitted
that in absence of the original documents mainly the disputed
cheque and the memo of return issued by the concerned bank,
being lost, the xerox copy of the aforesaid documents have been
brought on record. It is further submitted that the aforesaid
documents have been duly proved as secondary evidence through
the concerned bank witness, who has been examined vide Exhibit
57. He has further submitted that the second aspect, which is
raised by the learned Magistrate, while recording the impugned
judgment and order of acquittal is the authority under which the
witness - Pankaj Bhavsar has been examined on behalf of the
complainant Company vide Exhibits 17 and 26. Reliance is placed
upon the Resolution dated 18.11.2011, which is brought on record
vide Exhibit 49, whereby the original complainant Mr. Devesh
Magiya has been authorized by the aforesaid Resolution to lodge
the complaint. Reliance is placed on the authority letter dated
18.01.2012 issued by the aforesaid authorized officer on behalf of
the original complainant Company to sign the documents relating
to the Court cases as well as to deal with any other matter relating
to Court cases in case of the respondent - accused. It is submitted
that the authorized officer of the Company is empowered to give
his authority to any other Executive of the Company in this regard.
He, therefore, urged this Court to grant leave to appeal.
NEUTRAL CITATION
R/CR.MA/2710/2023 ORDER DATED: 05/09/2023
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5. The aforesaid submissions of the learned advocate on
record for the applicant has been vehemently objected by Mr. Jay
Thakkar, learned advocate for the respondent - accused. The
attention of this Court is invited to the reasons assigned by the
learned Magistrate. Reliance is placed on the provisions of the
Evidence Act, more particularly, Clause B of Section 65 of the
Evidence Act, which according to the learned advocate, has not
been complied with in the present case. He, therefore, submitted
that no error can be found with the approach of the learned
Magistrate, while passing the impugned judgment and order on the
ground that the complainant has failed to place on record the
evidence to prove that the cheque was issued towards legally
enforceable debt. He has relied upon the judgment of the Hon'ble
Apex Court as relied upon by the learned Magistrate in the case of
A.C. Narayanan Vs. State of Maharashtra reported in (2014) 11
SCC 790, wherein the principle laid down by the Hon'ble Supreme
Court does not permit even the Power of Attorney Holder, who is
not witness to the transaction to be accepted for the purpose of
evidence.
6. Having heard the learned advocates for the parties and
having perused the impugned judgment and order as well as
relevant document, which has come on record in the form of paper
book, prima facie, this Court finds that the complainant has been
able to bring on record secondary evidence supported by the
evidence of the concerned bank witness. The Resolution dated
18.11.2011 authorizes the original complainant not only to
represent the Company for existence as well as future legal
proceedings, but also permits him to authorize any other Company
Executive to represent before any Court on behalf of the said
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R/CR.MA/2710/2023 ORDER DATED: 05/09/2023
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applicant. It prima facie appears that pursuant to such authority
given by the Board of Directors, the authority letter came to be
issued by the said applicant permitting the witness namely Pankaj
Bhavsar to sign the documents relating to the Court cases as well
as other matters relating to the Court cases against the respondent
Company. The attention of this Court is invited to the cross-
examination of the said witness wherein it has emerged that the
said applicant has been subsequently appointed as Director of the
Company. In the opinion of this Court, an arguable case is made
out. Hence, this application seeking leave to appeal is allowed.
Rule is made absolute.
CRIMINAL APPEAL NO. 303 of 2023:
ADMIT. Learned APP waives service of Notice of admission
on behalf of the respondent No.1 - State and learned advocate Mr.
Thakkar waives service of Notice of admission on behalf of the
respondent No.2 - original accused.
Let R & P be called for.
Let Appeal be notified for hearing on 15.01.2024.
(NISHA M. THAKORE,J)
Y.N. VYAS
