The Sahyog Co-Op. Credit Society, ... vs State Of Gujarat
2023 Latest Caselaw 7084 Guj

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      R/CR.MA/1684/2023                               ORDER DATED: 26/09/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 1684 of 2023

                      In R/CRIMINAL APPEAL NO. 185 of 2023

                                       With
                          R/CRIMINAL APPEAL NO. 185 of 2023
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THE SAHYOG CO-OP. CREDIT SOCIETY, DAHOD THRO RAJESHBHAI P. SHAH
                             Versus
                       STATE OF GUJARAT
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Appearance:
MR HARDIK H DAVE(6295) 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 : 26/09/2023

                                    ORAL ORDER

ORDER IN R/CRIMINAL MISC.APPLICATION NO. 1684 of 2023

1. Heard learned advocate Mr. Siddhant S. Parikh, who has

appeared on behalf of Mr. Hardik Dave, 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 special leave to appeal under

Section 378(4) of Cr.P.C. against the judgment and order of acquittal

dated 19.11.2022 passed by the learned 2nd Additional Chief Judicial

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R/CR.MA/1684/2023 ORDER DATED: 26/09/2023

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Magistrate First Class, Dahod in Criminal Case No.2153 of 2018. By the

said judgment and order, the learned Magistrate has proceeded to

record the acquittal of the present respondent-accused for the

offence alleged under Section 138 of the N.I. Act.

4. This Court, vide order dated 14.06.2023, after hearing the

learned advocate for the applicant, had called upon the applicant to

place on record the details as regards the contention raised by the

applicant that the cheque was presented for the first time for

realization of the amount on 03.03.2018, as against the resolution

issued by the applicant-Cooperative Society authorizing the applicant

to pursue the legal remedy based on the Resolution dated 12.03.2018.

5. Learned advocate for the applicant has placed on record the

copy of the duplicate memo issued by the concerned bank. On perusal

of the aforesaid documents, it has transpired that the disputed

cheques were issued on 03.03.2018, which was processed by the

concerned bank on 05.03.2018. Noticing the insufficient balance in the

account of the respondent-accused, the aforesaid cheques were

dishonoured. As against the aforesaid facts, which has emerged on

record of the present appeal, the learned Magistrate upon evaluation

of the Resolution dated 12.03.2018 passed by the complainant-

society, which has come on record vide Exh.43, authorizing the

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R/CR.MA/1684/2023 ORDER DATED: 26/09/2023

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applicant to pursue the proceedings, has noticed that the cheques

were dishonoured on 18.03.2018. By noticing the aforesaid fact, the

learned Magistrate has doubted the very existence of the resolution

by observing that the aforesaid chronology of events goes to suggest

that the managing committee of the Credit Society was aware in

advance about the default of two blank cheques issued by the

respondent-accused.

5.1 The learned Magistrate has further taken into consideration the

fact that the loan accounts statement, which has been brought on

record vide Exh.44, goes to suggest that the outstanding balance

amount includes the expenses incurred by the bank towards the court

fees of an amount of Rs.6,000/- and Vakeel fees of an amount of

Rs.83,515/-. Noticing the absence of any explanation being offered by

the original complainant towards such expenses, the learned

Magistrate has arrived at a finding that there did not exist any debt or

legal liability on the part of the accused towards the complainant-

society. By recording aforesaid findings, the learned Magistrate has

proceeded to record acquittal of the respondent-accused.

5.2 The learned Magistrate has also taken into consideration the

fact that the complainant-society has not clarified the status of any

charge being continued on the property of the accused. Noticing that

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R/CR.MA/1684/2023 ORDER DATED: 26/09/2023

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statement of the account goes to indicate that the loan was

sanctioned as property loan.

6. Having heard the learned advocate for the applicant and having

perused the reasons assigned by the learned Magistrate, prima facie,

the court finds that the cheque was issued by the original complainant

on 03.03.2018 and it was processed by the respondent-bank for the

first time on 05.03.2018 as is evident from the duplicate memo, which

is placed on record by the applicant for the first time in response to

the query raised by this Court. Secondly, the Court notices that even if

the expense incurred by the bank towards the court fees, vakeel fees

and legal notice as is taken into consideration, the outstanding loan

amount is more than the amount, which appears on the disputed

cheque. If one goes by the plain reading of Section 138 of the N.I. Act,

any dishonour of the cheque issued towards the whole or part

payment of discharge of liability attracts the offence under Section

138 of the N.I. Act. In such circumstances, the cheque issued by the

respondent-accused for an amount of Rs.2 lakhs each can be

considered to be issued towards the payment of the outstanding loan

amount as contended by the complainant, by relying upon the

statement of account, which is brought on record vide Exh.44. On

overall consideration of the submissions of learned advocate for the

applicant, in the opinion of this Court, the arguable case is made out

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R/CR.MA/1684/2023 ORDER DATED: 26/09/2023

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for considering admission of the appeal. Hence, the present

application seeking leave to appeal is hereby allowed. Rule is made

absolute.

ORDER IN R/CRIMINAL APPEAL NO. 185 of 2023

Admit.

Notice of admission returnable on 28.02.2024. Learned APP

waives service of notice of admission for and on behalf of respondent-

State.

Issue bailable warrant of Rs. 10,000/- against respondent-

accused.

Registry is directed to call for record & proceedings from the

concerned trial court so as to reach this Court before the next date of

hearing.

(NISHA M. THAKORE,J) SUYASH SRIVASTAVA