Gujarat High Court
Madhuben Rasiklal Kantar vs State Of Gujarat on 17 January, 2024
NEUTRAL CITATION
R/CR.MA/426/2023 ORDER DATED: 17/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 426 of
2023
In R/CRIMINAL APPEAL NO. 54 of 2023
With
R/CRIMINAL APPEAL NO. 54 of 2023
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MADHUBEN RASIKLAL KANTAR
Versus
STATE OF GUJARAT
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Appearance:
G B PATEL(7818) for the Applicant(s) No. 1
MR.DIPAK B PATEL(3744) for the Applicant(s) No. 1
MR. NISHIT P GANDHI(6946) for the Respondent(s) No. 2
MS JIRGA JHAVERI, ADDL.PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 17/01/2024
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL)
NO. 426 of 2023
1. Learned advocate Mr.G.B.Patel submits that the judgment
and order passed by the learned trial Court acquitting the
respondent-accused only on the ground that for the
payment of debt of his own and his son and the cheuqe
for the amount of Rs.8,46,000/- was issued in favour of
the complainant. Learned advocate Mr.Patel draws the
attention of this Court with regard to the reasons
assigned by the learned trial Court wherein from the
cross examination, the learned trial Court had observed
that the amount of Rs.3,00,000/- was lent to the
respondent-accused and the remaining amount of
NEUTRAL CITATION
R/CR.MA/426/2023 ORDER DATED: 17/01/2024
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Rs.5,46,000/- was lent to the son of the respondent-
accused. Learned advocate Mr.Patel relies on the
provision under Section 138 of the Negotiable
Instruments Act, 1886 and submits that even if the
cheque was issued for discharging the debt or other
liability then also the provisions of Negotiable
Instruments Act, 1886 is attracted. Learned advocate
Mr.Patel relies on the decision rendered by the Apex Court
in case of ICDS LTD VS Beena Shabeer and Anr
reported in 2002 (6) SCC 426 wherein in paragraph
Nos.10 and 11 the Apex Court has held as under:
"10. The language, however, has been rather specific as
regards the intent of the legislature. The commencement
of the Section stands with the words "Where any
cheque". The above noted three words are of extreme
significance, in particular, by reason of the user of the
word "any" the first three words suggest that in fact for
whatever reason if a cheque is drawn on an account
maintained by him with a banker in favour of another
person for the discharge of any debt or other liability,
the highlighted words if read with the first three words
at the commencement of Section 138, leave no manner
of doubt that for whatever reason it may be, the
liability under this provision cannot be avoided in the
event the same stands returned by the banker unpaid.
The legislature has been careful enough to record not
only discharge in whole or in part of any debt but the
NEUTRAL CITATION
R/CR.MA/426/2023 ORDER DATED: 17/01/2024
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same includes other liability as well. This aspect of the
matter has not been appreciated by the High Court,
neither been dealt with or even referred to in the
impugned judgment.
11. The issue as regards the co-extensive liability of the
guarantor and the principal debtor, in our view, is
totally out of the purview of Section 138 of the Act,
neither the same calls for any discussion therein. The
language of the Statute depicts the intent of the law-
makers to the effect that wherever there is a default on
the part of one in favour of another and in the event a
cheque is issued in discharge of any debt or other
liability there cannot be any restriction or embargo in
the matter of application of the provisions of Section
138 of the Act: 'Any cheque' and 'other liability' are the
two key expressions which stands as clarifying the
legislative intent so as to bring the factual context
within the ambit of the provisions of the Statute. Any
contra interpretation would defeat the intent of the
legislature. The High Court, it seems, got carried away
by the issue of guarantee and guarantor's liability and
thus has overlooked the true intent and purport
of Section 138 of the Act. The judgments recorded in
the order of the High Court do not have any relevance
in the contextual facts and the same thus does not lend
any assistance to the contentions raised by the
NEUTRAL CITATION
R/CR.MA/426/2023 ORDER DATED: 17/01/2024
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respondents."
2. Learned advocate Mr.Patel submits that the judgment and
order passed by the learned trial Court is against the law
laid down by the Apex Court and therefore prayed to
allow this application seeking leave to prefer an appeal
and to admit the appeal.
3. In view of the above submissions, this Court deems it fit
to allow this application granting leave to prefer an
appeal. Hence, this application is allowed. Leave to prefer
an appeal is granted.
ORDER IN R/CRIMINAL APPEAL NO. 54 of 2023
1. The appeal is admitted. Learned A.P.P. Ms.Vrunda Shah
waives service of notice of admission on behalf of
respondent - State and learned advocate Mr.Nishit
Gandhi waives service of notice of admission on behalf of
the respondent No.2-accused.
2. Record and proceedings be called for from the concerned
court. Registry is directed to list the Criminal Appeal in
seriatim.
(M. K. THAKKER,J)
M.M.MIRZA
