Gujarat High Court
The Gujarat State Cooperative ... vs Varsangbhai Haribhai Chauhan on 25 September, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/16221/2023 ORDER DATED: 25/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 16221 of 2023
In R/CRIMINAL APPEAL NO. 2114 of 2023
With
R/CRIMINAL APPEAL NO. 2114 of 2023
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THE GUJARAT STATE COOPERATIVE AGRICULTURE AND RURAL
DEVELOPMENT BANK LTD
Versus
VARSANGBHAI HARIBHAI CHAUHAN
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Appearance:
MR RUTVIJ S OZA(5594) for the Applicant(s) No. 1
NISHITH P ACHARYA(9308) for the Respondent(s) No. 1
Ms. Monali Bhatt, Addl.PUBLIC PROSECUTOR for the Respondent(s)
No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 25/09/2023
ORAL ORDER
1. Heard Mr. Rutvij Oza, learned advocate for the applicant -
original complainant and Mr. Nishith Acharya, learned advocate
for the respondent -accused. Rule returnable forthwith. Mr.
Acharya, learned advocate waives service of Rule on behalf of
respondent no.1 and learned Additional Public Prosecutor waives
service of Rule on behalf of the respondent State.
2. This application is filed seeking special leave to appeal
under Section 378(4) of the Code of Criminal Procedure against
the impugned judgment and order of acquittal dated 4.3.2023
passed by the learned Chief Judicial Magistrate, Bhuj-Kutch in
Criminal Case No.353 of 2019. By the said judgment and order,
the learned Magistrate has proceeded to record the acquittal of
present respondent- original accused for the offence alleged
under Section 138 of the Negotiable Instruments Act.
NEUTRAL CITATION
R/CR.MA/16221/2023 ORDER DATED: 25/09/2023
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3. Learned advocate for the applicant has drawn attention of
this Court to the reasons assigned by the learned Magistrate
while recording the order of acquittal. Learned advocate has
placed on record the relevant documents, more particularly, the
statement of bank account (Exh.41), the copy of the loan register
ledger (Exh.40) maintained by the Bank in respect of
respondent-accused. By referring to the aforesaid documents,
learned advocate has submitted that the learned Magistrate
grossly erred in not appreciating the document, more
particularly, Exh.41 which is the statement of Bank Account,
which goes to indicate the outstanding amount against the
discharge of which, disputed cheque was issued by the
respondent-accused. Secondly, it is submitted by learned
advocate that on other hand the documents produced by the
respondent-accused which is in the nature of the receipt
acknowledging the payment of the alleged outstanding amount of
loan and the copy of the Form 58 A and Form 2 issued by the
Registrar, Cooperative Society though being not admitted as
evidence, the same has been referred to and relied upon by the
learned Magistrate while arriving at a finding that the charge
created on the land owned by the respondent-accused has been
removed acknowledging the fact that there was no outstanding
amount against the aforesaid loan transaction. It is further
submitted by learned advocate for the applicant that no
document has come on record to support the defence raised by
the respondent - accused with regard to the repayment of the
outstanding amount of loan. It is, therefore, urged by the learned
advocate that there was no rebuttal of the presumption which
was otherwise raised in favour of the complainant.
NEUTRAL CITATION
R/CR.MA/16221/2023 ORDER DATED: 25/09/2023
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4. On the other hand, Mr. Acharya, learned advocate for the
respondent-accused has vehemently objected to the grant of
leave to appeal by drawing attention of this Court to the reasons
assigned by the learned Magistrate. It is submitted by learned
advocate that upon appreciation of the evidence, more
particularly, the cross examination of the complainant and
documents produced by the respondent-accused, noticing the
cogent material, the learned Magistrate has rightly arrived at the
finding that there was discrepancy noticed in the amount
reflected in the disputed cheque. According to learned advocate,
the accused was successful in raising probable defence with
regard to repayment of loan amount. In such circumstances, the
learned Magistrate has rightly shifted the burden upon the
respondent-accused to prove his case beyond reasonable doubt.
Having noticed the discrepancy, the Court has rightly proceeded
to record the order of acquittal. He, therefore, objected to grant
of leave to appeal as well as admission of appeal.
5. Considering the submissions of the learned advocates for
the respective parties and having gone through the impugned
order of acquittal, prima faice, the Court finds that an arguable
case is made out for consideration of the appeal. The documents,
more particularly, the loan account ledger and statement of
account which has been placed for consideration before this
Court, requires close examination and the evidence of the
complainant needs to be re-examined in light of the submission
made by the learned advocate. Hence, the present application
is allowed and Leave to Appeal, as prayed for, is hereby
granted. Rule is made absolute.
NEUTRAL CITATION
R/CR.MA/16221/2023 ORDER DATED: 25/09/2023
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Order in Criminal Appeal No.2114 of 2023
Admit. Mr. Acharya, learned advocate waives service of
admission on behalf of respondent no.1 and learned Additional
Public Prosecutor waives service of admission on behalf of the
respondent State. Registry is directed to call for the Record and
Proceedings of the case from the concerned Court. Registry is
directed to notify the Appeal for hearing on 27.02.2024.
(NISHA M. THAKORE,J)
KAUSHIK J. RATHOD
