Gujarat High Court
Ashish Bhimjibhai Prajapati vs Hareshbhai Janubhai Jaiswal on 5 September, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/12575/2023 ORDER DATED: 05/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 12575 of 2023
In R/CRIMINAL APPEAL NO. 1742 of 2023
With
R/CRIMINAL APPEAL NO. 1742 of 2023
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ASHISH BHIMJIBHAI PRAJAPATI
Versus
HARESHBHAI JANUBHAI JAISWAL
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Appearance:
MALHAR J PARMAR(10124) for the Applicant(s) No. 1
MR DHRUV B GOSWAMI(10215) for the Applicant(s) No. 1
MR NEEL V SOLANKI(10278) for the Applicant(s) No. 1
GAURANG H THAKKAR(8662) for the Respondent(s) No. 1
MR SADDAMHUSSAIN A CHAUHAN(11883) for the Respondent(s) No. 1
Ms. Vrunda C Shah, Addl.PUBLIC PROSECUTOR for the Respondent(s)
No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 05/09/2023
ORAL ORDER
1. Heard Mr. Malhar Parmar, learned advocate for the
applicant- original complainant and Mr. S A Chauhan, learned
advocate who has appeared on behalf of respondent -accused.
2. This application is filed under Section 378(4) of the Code of
Criminal Procedure seeking leave against the judgment and
order dated 23.02.2023 passed by the learned Judicial
Magistrate, First Class, Vadodara in Criminal Case No.16677 of
2019. By the said judgment and order, the learned Magistrate
has proceeded to record the acquittal of respondent no.1-
accused for the alleged offences punishable under Section 138 of
the Negotiable Instruments Act.
3. Learned advocate for the applicant has drawn attention of
this Court to the reasons assigned by the learned Magistrate
while not entertaining the complaint. It is submitted that the
NEUTRAL CITATION
R/CR.MA/12575/2023 ORDER DATED: 05/09/2023
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learned Magistrate has mainly taken into consideration the
aspect of service of demand notice at the incorrect address of the
respondent- accused, thereby, holding non compliance of Section
138(b) of the Negotiable Instruments Act. Learned advocate for
the applicant has relied upon the MOU dated 19.09.2016, which
is a notarized document executed between the parties and has
submitted that the complainant was guided by the details of the
address reflected in the MOU. Believing the fact that it is correct
address of the respondent- accused, the demand notice was
attempted to be effected at the aforesaid address. According to
the learned advocate, the notice was in fact refused by the
respondent - accused as per the endorsement reflected in the
acknowledgment slip. It is therefore, urged that the learned
Magistrate has committed serious error in arriving at a finding
that there is non compliance of the mandatory provision of
Section 138(b) of the Negotiable Instruments Act.
4. On the other hand, present application has been
vehemently objected by the learned advocate for the respondent-
accused. Learned advocate has relied upon the cross
examination of the original complainant and has submitted that
in fact the complainant has admitted the fact that initially the
notice was addressed at the house bearing no. A/5.
Subsequently, the correction was incorporated in the cause title
of the original complaint. He has also admitted the fact that the
notice was sent at the address bearing no. A/5. Even, the
acknowledgment slip, the details of the correct address
mentioned is the house number as A/130 as been entered
subsequently. By referring to the aforesaid evidence, learned
advocate for the respondent- accused has submitted that no
NEUTRAL CITATION
R/CR.MA/12575/2023 ORDER DATED: 05/09/2023
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error can be found with the approach of the learned Magistrate
in arriving at a finding that the complainant has failed to send
and serve the demand notice at the correct address of the
respondent accused, thereby concluding that there is no
compliance of the essential ingredients of Section 138 of the
Negotiable Instruments Act and has rightly recorded the
acquittal.
5. Having heard the learned advocates for the respective
parties and having perused the impugned order, prima facie, the
Court finds that the appeal deserves admission. The question
which falls for consideration in the facts of the present case is
whether giving of notice by the complainant at the address
known to the complainant is sufficient compliance of the clause
(b) of Section 138 of the Negotiable Instruments Act. Hence, the
present application is allowed and Leave to Appeal, as prayed
for, is hereby granted.
Order in Criminal Appeal No.1604 of 2023
Admit. Learned Additional Public Prosecutor waives service
of admission on behalf of respondent State and Mr. S A
Chauhan, learned advocate waives service of admission on
behalf of the respondent no.1. Registry is directed to call for the
Record and Proceedings of the case from the concerned Court.
Registry is directed to notify the present appeal for hearing on
15.1.2024.
(NISHA M. THAKORE,J)
KAUSHIK J. RATHOD
