Gujarat High Court

Patel Ronakbhai Visabhai vs State Of Gujarat on 25 June, 2024

                                                                             NEUTRAL CITATION




   R/CR.MA/3498/2024                          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. 3498 of
                              2024
             In F/CRIMINAL APPEAL NO. 35322 of 2023
                              With
               F/CRIMINAL APPEAL NO. 35322 of 2023
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                       PATEL RONAKBHAI VISABHAI
                                 Versus
                        STATE OF GUJARAT & ANR.
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Appearance:
MR SHAKEEL A QURESHI(1077) for the Applicant(s) No. 1
HARSHIT M KARATHIA(7916) for the Respondent(s) No. 2
MR JAY MEHTA, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
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  CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
                       Date : 25/06/2024
                        ORAL ORDER

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 3498 of

1. This application is filed seeking leave to prefer an appeal

against the judgment and order of acquittal dated

07.04.2023 passed by the learned 3 rd Additional Chief

Judicial Magistrate, Mehsana in Criminal Case No.4332 of

2019 acquitting the respondent-accused from the

charges punishable under Section 138 of the Negotiable

Instruments Act, 1886.

2. It is the case of the complainant that the accused was

having the Hair Cutting Saloon adjoining the house of the

complainant and on the financial need of the accused,

the complainant had lent the amount of Rs.1,50,000/- on

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14.03.2017, after withdrawing the same from the Bank,

assurance was given that within a period of one year the

amount would be repaid, however, on completion of the

year amount was not repaid therefore, demand was

raised and accused had issued the cheque bearing

No.001325 of Rs.1,88,000/- in favour of the complainant

on 09.05.2019. On depositing the cheque, the same was

returned with an endorsement of 'insufficient fund'

therefore, after following the due procedure, the private

complaint came to be filed before the competent court.

Learned trial Court after following the procedure and

considering the evidence on record has acquitted the

respondent-accused from the charges levelled against

him, which is the subject matter of challenge before this

Court in the appeal as well as in the application for

seeking leave to prefer an appeal.

3. Heard the learned advocate Mr.Nauman Qureshi for the

applicant.

4. Learned advocate Mr.Qureshi submits that the amount

which was withdrawn for landing to the accused was

supported by the evidence of the statement of account of

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Mehsana Urban Cooperative Bank, which was produced

at Mark 27/2 however, learned trial Court has disbelieved

the case on the ground that in the demand notice, in the

chief examination and in the complaint the amount is

stated differently. Learned advocate Mr.Qureshi submits

that though in the cheque, the amount is stated

Rs.1,88,000/- against the lending of amount of

Rs.1,50,000/-, but excess amount of Rs.38,000/- is with

regard to the previous transaction.

5. Learned advocate Mr.Qureshi submits that without giving

proper weightage to the evidence, learned trial Court has

acquitted the respondent-accused and therefore, the

leave is required to be granted and appeal is required to

be admitted.

6. Considering the submissions made by the learned

advocate Mr.Qureshi and on perusing the record and

proceedings it transpires that, as per the contention in

the complaint, the amount of Rs.1,50,000/- was lent for

one year on 14.03.2017 by the complainant to the

respondent-accused. At the time of borrowing the

amount, the complainant and the respondent-accused

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have executed one Memorandum of Understanding

wherein it was accepted by the respondent-accused that

the amount of Rs.1,50,000/- was borrowed, which would

be repaid within a period of one year in two installments.

That Memorandum of Understanding was produced below

Exhibit 26 before the learned trial Court. Thereafter, the

cheque, which was produced below Exhibit 20 stating the

amount of Rs.1,88,000/-. The cross examination which

was conducted by the respondent-aaccused wherein the

repsondent-accused has admitted that at the time of

lending the amount of Rs.1,50,000/-, the respondent-

accused had issued the cheque towards the security. It is

further admitted by the complainant that the cheque

which was produced below Exhibit 20 having the different

handwriting in different column. It is accepted by the

complainant that in the stamp, which was produced

below Exhibit 26 and in the cheque produced below

Exhibit 20 there is a different amount stated.

7. It is further admitted by the complainant in the complaint

also that Rs.1,50,000/- was borrowed against which

cheque of Rs.1,88,000/- was issued and the suggestion

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which was put that whether the complainant was doing

the business of finance was answered in negative form.

8. At this stage, Section 138 of the N.I.Act is required to be

referred, which is reproduced hereinbelow:

"138. Dishonour of cheque for insufficiency, etc., of funds in the account.--

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:"

Provided that nothing contained in this section shall apply unless--

(a) the cheque has been presented to the bank within a period of six months from the date on which it is

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drawn or within the period of its validity, whichever is earlier;

(b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."

8.1. The words "discharge of any debt or other liability

in Section 138 of the N.I.Act should be interpreted to

mean current existing or post ascertained liabilities.

When the complainant has received the sign, blank

cheque, the drawer i.e. the respondent-accused gives

authority to fill-up the agreed liability and the

complainant with dishonest intention filled-up excess

liability, then the respondent has no obligation to

facilitate the encashment of cheque.

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