Suthar Ankitkumar Pravinbhai vs State Of Gujarat
2023 Latest Caselaw 7048 Guj

Citation : 2023 Latest Caselaw 7048 Guj
Judgement Date : 25 September, 2023

Gujarat High Court

Suthar Ankitkumar Pravinbhai vs State Of Gujarat on 25 September, 2023

Bench: Hasmukh D. Suthar

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     R/CR.RA/402/2023                              ORDER DATED: 25/09/2023

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
     R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION -
           NEGOTIABLE INSTRUMENT ACT) NO. 402 of 2023
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                        SUTHAR ANKITKUMAR PRAVINBHAI
                                    Versus
                             STATE OF GUJARAT
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Appearance:
MR AM BHATASARA(5846) for the Applicant(s) No. 1
MR BHUVNESH GAHLOT(10286) for the Applicant(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                               Date : 25/09/2023

                                ORAL ORDER

1. The present application is filed by the applicant-convict and

assailed the judgment and order dated 05.03.2022 passed by the

learned 6th Additional Chief Judicial Magistrate, Mahesana in

Criminal Case No. 3195 of 2019, wherein, the applicant has been

convicted for the offence punishable under Section 138 of the

N.I. Act, whereby the applicant is sentenced to undergo S.I. of 1

year with fine of Rs.5,00,000/- and in default S.I. for further

period of two months.

2. Being aggrieved and dissatisfied with the said order of

conviction and sentence, the Revisionist preferred Criminal

Appeal No.66 of 2022 before the learned Sessions Judge,

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R/CR.RA/402/2023 ORDER DATED: 25/09/2023

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Mahesana and the order and sentence recorded by the learned

Additional Chief Judicial Magistrate, Mahesana is confirmed and

upheld by learned Sessions Judge, Mahesana by order dated

02.03.2023.

3. On perusal of the complaint, it appears that the present

revisionist has given a cheque of Rs.7,50,000/- to the respondent

No.2 - complainant to reimburse the outstanding dues. Further,

when the respondent No.2 deposited the said cheque in the

Bank, the cheque was dishonoured due to insufficient funds in

the revisionist's bank account. After knowing the said

information from the Bank, the respondent No.2 served a

statutory demand notice but the respondent No.2 did not care to

reimburse the outstanding dues. Therefore, the respondent No.2

filed a complaint under Section 138 of the N.I. Act before the

learned 6th Additional Chief Judicial Magistrate, Mahesana and

which is confirmed by the learned Sessions Judge, Mahesana.

4. Learned advocate for the applicant has submitted that the

complainant has failed to prove legal enforceable debt and even

no opportunity to defend is availed to the present applicant. It is

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submitted that right to cross-examination of the revisionist came

to be closed and revisionist was not allowed to cross-examine the

complainant. It is submitted that even legally enforceable debt is

not proved and alleged transactions of Rs.7,50,000/- is on record.

It is further submitted that Rs.5,00,000/- is already paid as a fine

amount. Hence, prayer of the applicant may be considered.

5. Per contra, Learned APP has vehemently opposed the

application and submitted that the trial Court has properly

appreciated the evidence produced on record. Therefore, he

prays that the present application be dismissed.

6. Having heard the learned advocates for the respective

parties and having considered the documents produced on

record, it appears that an amount of Rs.5,00,000/- has been paid

and considering the fact that amount of legal enforceable debt is

questioned and offence is bailable and compoundable one during

the pendency of the Criminal Revision Application. Keeping in

mind provision of Section 148(A) of the Negotiable Instruments

Act, the present application deserve consideration.

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7. In view of the above, this Court deems it fit to grant

interim relief in terms of para 9(C) and stay the order of sentence

imposed by the 6th Additional Chief Judicial Magistrate,

Mahesana in Criminal Case No. 3195 of 2019 , which is confirmed

by the learned learned Sessions Judge, Mahesana vide order

dated 02.03.2023 in Criminal Appeal No. 66 of 2022, subject to

deposition of 50% amount of Rs.7,50,000/- i.e. Rs.3,75,000/-

within 15 days from today before the learned Trial Court. (The

applicant shall have liberty to adjust the amount, if any,

deposited pursuant to earlier order passed by the concerned

Trial/Appellate Court), pending hearing and final disposal of the

Criminal Revision Application. The applicant shall be released on

bail by executing a fresh bond of Rs.10,000/- (Rupees Ten

Thousand Only) with one surety of the like amount to the

satisfaction of the trial Court, if his presence is no longer

required for any other offence on the conditions that:-

(a) shall not take undue advantage of liberty or misuse liberty;

(b) shall not leave India without prior permission of this Court.

(c) shall furnish the present address of his

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residence to the Court concerned at the time of execution of the bond and shall not change the residence without the prior permission of this Court.