Gujarat High Court
Jentilal Chatrabhuj And Co. Thro ... vs State Of Gujarat on 25 June, 2024
NEUTRAL CITATION
R/CR.MA/5750/2023 ORDER DATED: 25/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 5750 of
2023
In R/CRIMINAL APPEAL NO. 815 of 2023
With
R/CRIMINAL APPEAL NO. 815 of 2023
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JENTILAL CHATRABHUJ AND CO. THRO JAGDISHBHAI CHUNILAL
BHAYANI & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1,2,3
MR SHAKTI S JADEJA(5491) for the Applicant(s) No. 1,2,3
MR.JAY MEHTA, APP for the Respondent(s) No. 1
MR.M.S.PADALIYA for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 25/06/2024
ORAL ORDER
1. Learned advocate Mr.Jadeja submits that the judgment
and order of acquittal was passed by the learned trial
court on two grounds, one is that the signatory of the
cheque namely Vijay Bhagwandas has not issued the
cheque as the cheque belongs to Dipak Bhagwanji
Devmurari and the other ground is that after issuance of
the cheque and dishonouring the same the other cheque
which was issued for the part payment for the amount of
Rs.1,95,000/- was honoured, however, in the demand
notice the amount is mentioned of Rs.6,07,667/- i.e
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R/CR.MA/5750/2023 ORDER DATED: 25/06/2024
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cheque amount.
1.1. Learned advocate Mr.Jadeja submits that so far as the
first ground is concerned it was never the case of the
respondent-accused in his pleading that he was not the
signatory of the cheque.
1.2. Learned advocate Mr.Jadeja has drawn the attention
of this Court with regard to the statement recorder
under section 313 of Cr.P.C wherein, he did not deny the
signature of the cheque nor the issuance of the cheque
and only defence raised is that the amount mentioned in
the cheque is not the legally enforceable debt.
1.3. Learned advocate Mr.Jadeja has further drawn the
attention of this Court with regard to the memo of
appeal which was filed against the judgment and order
of conviction by the learned trial court wherein, also no
ground was raised with regard to the signatory of the
cheque.
1.4. Learned advocate Mr.Jadeja submits that so far as the
other ground is concerned, as the cheque which was
dishonoured was having the amount of Rs. 6,07,667/-.
the demand notice has to be issued for the said amount.
1.5. Learned advocate Mr.Jadeja submits that in fact in the
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R/CR.MA/5750/2023 ORDER DATED: 25/06/2024
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complaint the specific averment is raised by the
complainant that after issuance of the cheque of
Rs.6,07,667/- and on dishonouring the said cheque on
15.06.2017 another cheque bearing no.110607 of
Rs.1,95,000/- was issued on the same day and which was
encashed.
1.6. Learned advocate Mr.Jadeja submits that therefore, in
the complaint memo the amount which is due and
payable is mentioned of Rs.412667.12.
2. Learned advocate Mr.Jadeja has relied on the decision
rendered by the Apex Court in the case of Suman Sethi
V. Ajay K.Churiwal wherein the Apex Court has held as
under:
"It is well settled principle of law that the notice has to he read
as a whole. In the notice, demand has to be made for the "said
amount" i.e. cheque amount. If no such demand is made the
notice no doubt would fall .short of its legal requirement Where
in addition to "said amount" there is also a claim by way of
interest, cost etc. whether the notice is bad would depend on the
language of the notice. If in a notice while giving the break up of
the claim the cheque amount, interest, damages etc. are separately
specified, other such claims for interest, cost etc. would be
superfluous and these additional claims would he severable- and
will not invalidate the notice. If, however, in the notice an
ommbus demand is made without specifying what was due under
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the dishonored cheque, notice might well fail to meet the legal
requirement and may be regarded as bad."
3. Learned advocate Mr.Jadeja further relied on the
decision rendered by the Apex Court in the case of
K.R.Indira Vs. G.Adinarayana wherein the Apex Court
has held as under:
"One of the conditions was service of a notice making demand of
the payment of the amount of cheque as is evident from the use
of the phraseology "payment of the said amount of money". Such
a notice has to be issued within a period of 30 days from the
date of receipt of information from the bank in regard to the
return of the cheque as unpaid. The statute envisages application
of the penal provisions. A penal provision should be construed
strictly; the condition precedent wherefor is service of notice. It is
one thing to say that the demand may not only represent the
unpaid amount under cheque but also other incidental expenses
like costs and interests, but the same would not mean that the
notice would be vague and capable of two interpretations. An
omnibus notice without specifying as to what was the amount due
under the dishonoured cheque would not subserve the requirement
of law. Respondent No. 1 was not called upon to pay the amount
which was payable under the cheque issued by it. The amount
which it was called upon to pay was the outstanding amounts of
bills, i.e., Rs. 8,72,409/-. The noticee was to respond to the said
demand. Pursuant thereto, it was to offer the entire sum of Rs.
8,72,409/-. No demand was made upon it to pay the said sum of
Rs. 1,00,000/- which was tendered to the complainant by cheque
dated 30.04.2000. What was, therefore, demanded was the entire
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sum and not a part of it."
4. Learned advocate Mr.Jadeja submits that except the
defence that amount is different in the notice no other
defence was raised however, learned trial court has
acquitted the respondent-accused in addition to the
above ground of non-signatory of the cheque.
5. Considering the avernments made in the application and
submissions made by the learned advocate appearing for
the applicant, this Court deems it fit to allow this
application granting leave to prefer an appeal.
Therefore, this application is allowed.
ORDER IN R/CRIMINAL APPEAL NO. 815 of 2023:
1. The appeal is admitted. Learned A.P.P. Mr.Jay Mehta
waives service of notice of admission on behalf of
respondent - State and learned advocate Mr.Padalia
waives service of notice of admission on behalf of
respondent - accused.
2. Matter be listed in seriatim.
(M. K. THAKKER,J)
ARCHANA S. PILLAI
