Palanpur Nagarpalika Thro Chief ... vs State Of Gujarat
2023 Latest Caselaw 7001 Guj

                                                                                  NEUTRAL CITATION




      R/CR.MA/15789/2023                             ORDER DATED: 22/09/2023

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               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 15789 of 2023

                     In F/CRIMINAL APPEAL NO. 14810 of 2023

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       PALANPUR NAGARPALIKA THRO CHIEF OFFICER INCHARGE THRO
                    PANCHABHAI VALABHAI MALI
                              Versus
                        STATE OF GUJARAT
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Appearance:
MR. ABHIJIT RATHOD FOR MR MEHUL H RATHOD(701) 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 : 22/09/2023

                                 ORAL ORDER

1. Heard learned advocate Mr. Abhijit Rathod appearing for Mr.

Mehul Rathod, learned advocate on record for the applicant-original

complainant.

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

of rule for and on behalf of respondent-State.

3. This application is filed seeking leave to appeal under Section

378(4) of the Code of Criminal Procedure against the impugned

judgment and order dated 22.02.2023 passed by the learned 4 th

Additional Chief Judicial Magistrate, Palanpur, Banaskantha in

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R/CR.MA/15789/2023 ORDER DATED: 22/09/2023

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Criminal Case No.1658 of 2022. By the said judgment and order, the

learned Magistrate has recorded the acquittal of the present

respondent - original accused for the alleged offence punishable

under Section 138 of the Negotiable instruments Act.

4. Learned advocate on record for the applicant-original

complainant has made an attempt to explain the existence of the

outstanding dues towards the realization of the municipal property

tax levied on the shop of the respondent-accused. The attention of

this Court is invited to the documents being brought on record by the

applicant, more particularly Exh.21, which is the demand cum bill of

the outstanding amount of tax raised for financial year 2021-2022,

wherein the outstanding amount is reflected for an amount of Rs.

2,77,513/-. It is submitted by learned advocate for the applicant that

the learned Magistrate has taken into consideration the evidence of

the Tax Inspector, who has appeared on behalf of the original

complainant, wherein he has admitted in his cross-examination that

the bill raised by the Corporation is illegal. According to the learned

advocate for the applicant, the respondent-original accused has failed

to deposit the tax amount starting from the financial year 2013-2014

and had failed to make such payment for almost six years, which had

resulted into outstanding amount of tax for Rs.2,31,083/- as on

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17.09.2019.

4.1 It is further submitted that the aforesaid amount was

continuously reflected in the demand bills raised by the Corporation

from time to time. The explanation is offered by the learned advocate

for the applicant that due to glitch in the software when the computer

generated bill was raised on 01.04.2021 for the financial year of 2020-

2021, the amount to be realized was shown as Rs. 23,540/-. Initially the

amount was cleared. Noticing the aforesaid fact, inadvertently, the

Corporation had issued no due certificate, which has been placed on

record by the respondent-accused vide Exh.30. It is further submitted

that taking benefit of the no due certificate, which has been

inadvertently issued by the Corporation on account of the glitch in the

software generating bill of lesser amount, the defence has been put

forward by the respondent-accused that the earlier amount

outstanding has been cleared.

4.2 To meet with such defence, learned advocate for the applicant

has raised the contention that the cheque dated 10.01.2022 was

issued by the respondent-accused for an amount of Rs.2,90,000/-,

which included the earlier outstanding amount of Rs.2,77,530/- along

with penal interest, which comes to total of an amount of

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R/CR.MA/15789/2023 ORDER DATED: 22/09/2023

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Rs.2,90,000/-. In fact, the cheque could not be realized because of the

stop payment instructions issued by the respondent-accused. By

referring to the aforesaid circumstances, the learned advocate for the

applicant has submitted that the learned Magistrate has committed

serious error in accepting the defence raised by the accused based on

no due certificate. It is further submitted by the learned advocate that

in fact, no dispute has been raised by the respondent-accused with

regard to his signature and the disputed cheque. In such

circumstances, the statutory presumption, which has been drawn in

favour of the original complainant remained intact.

5. This Court had called upon the learned advocate to clarify the

status of Regular Civil Suit No.5 of 2022 preferred by the present

respondent-original accused against respondent-corporation. Learned

advocate for the applicant, under the instructions, has submitted that

the aforesaid suit is pending adjudication and no interim relief has

been passed in favour of the original accused. In such circumstances,

the demand bill raised by the complainant has remained in existence

and against the aforesaid legally enforceable debt, the disputed

cheque has been drawn by the respondent-accused. It is therefore

submitted that dishonour of the cheque attracts the offence

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

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submissions, learned advocate for the applicant has urged this Court

to grant leave to appeal.

6. Considering the aforesaid submissions of learned advocate for

the applicant and having perused the impugned order as well as the

explanation offered with regard to the existence of the legally

enforceable debt, prima facie, the court finds that an arguable case is

made out for consideration of admission of appeal. Hence, the present

application is hereby allowed. Rule is made absolute. Registry is

directed to notify the Criminal Appeal for admission hearing.

(NISHA M. THAKORE,J) SUYASH SRIVASTAVA