Gujarat High Court
Patel Chetnaben Rajendrakumar vs State Of Gujarat on 22 November, 2024
NEUTRAL CITATION
R/CR.MA/22394/2022 ORDER DATED: 22/11/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 22394
of 2022
In R/CRIMINAL APPEAL NO. 2424 of 2022
With
R/CRIMINAL APPEAL NO. 2424 of 2022
With
R/CRIMINAL MISC.APPLICATION NO. 22626 of 2022
In
R/CRIMINAL APPEAL NO. 2454 of 2022
With
R/CRIMINAL APPEAL NO. 2454 of 2022
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PATEL CHETNABEN RAJENDRAKUMAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR BHAVESH D HAJARE(5515) for the Applicant(s) No. 1
MR TEJAS P SATTA(3149) for the Respondent(s) No. 2
MR YUVRAJ BRAHMBHATT, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 22/11/2024
COMMON ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATIONS
1. The present applications are filed by the applicants, wife
and husband respectively - original complainants under
Section 378(4) of the Code of Criminal Procedure, 1973 (for
short "Cr.P.C.") seeking leave to file an appeal against the
judgment and orders dated 22/08/2022 & 18/08/2022
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respectively passed by the learned 8 th & 7th Additional Chief
Judicial Magistrate, Gandhinagar respectively (hereinafter
referred to as "the trial court") in Criminal Case Nos.3659 of
2019 & 3563 of 2019 respectively, whereby, the respondent
No.2 - original accused came to be acquitted from the charge
levelled against him under Section 138 of the Negotiable
Instruments Act, 1881 (for short "the I.D. Act").
2. Heard learned advocate Mr.Bhavesh Hajare, appearing on
behalf of the applicants - original complainants, learned APP
Mr.Yuvraj Brahmbhatt, appearing on behalf of the respondent
No.1 - State and learned advocate Mr.Tejas P. Satta, appearing
on behalf of the respondent No.2 - original accused.
3. It is the case of the applicants that, the applicants had
advanced hand-loan of Rs.50,00,000/- in cash to the
respondent accused in presence of one Rajendrakumar
Sureshkumar being relative of the complainants, for which the
respondent accused had issued cheques for the purpose of
security. The said cheques on being deposited by the
applicants, returned with an endorsement 'insufficient funds'
and therefore, the applicants had issued a legal notice to the
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respondent on 09/03/2019 which was served upon the
respondent on 12/03/2019, however, it returned with an
endorsement 'refused to accept' and thereafter, the applicants
had filed a criminal complaint before the concerned court. The
concerned court had issued process against the respondent
accused and after considering the oral as well as documentary
evidence and after considering the submissions advanced by
both the sides, the court had recorded the reasons in
paragraph 12 onwards. The applicants had not produced any
documentary evidence with regard to advancement of hand-
loan to the tune of Rs.50,00,000/- in cash but, the evidence
has come on record to the effect that in the savings account of
the applicants maximum balance during these four years
reached upto Rs.10,000/- only and therefore, the trial court has
passed the impugned judgment and orders of acquittal in
favour of the respondent accused. Being aggrieved and
dissatisfied with the same, the applicants have preferred the
present applications seeking leave to appeal alongwith
criminal appeal challenging the same.
4. Learned advocate Mr.Hajare, appearing for the
applicants, has submitted that the trial court has committed a
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serious error on law and on facts while passing the impugned
judgment and orders acquitting the respondent accused for the
offence punishable under section 138 of the N.I. Act. He has
submitted that the respondent accused has accepted his
signatures on the cheques and once the cheques were
dishonoured by the drawee bank on account of insufficient
funds or stop payment as per the instructions received from
the drawee bank, the ingredients of Section 138 are attracted
and the respondent accused is liable for the alleged offence
under Section 138 of the N.I. Act, however, the trial court has
not considered this aspect in its true and proper spirit. He has
further submitted that the trial court has merely on
presumption that as there was no sufficient evidence produced
by the applicants complainants supporting their say that they
had advanced a hand-loan to the present respondent accused
and during the period from the year 2016 to 2019 whether this
amount was of their savings is also disputed by the trial court,
in fact, the respondent has neither produced any documentary
evidence nor examined any witnesses and therefore, under
such circumstances, the impugned judgment and orders of
acquittal are bad in law, erroneous, illegal and unjust and the
same are required to be quashed and set aside. Over and
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above the averments made in the application, learned
advocate Mr.Hajare has urged that the present applications
seeking leave to appeal be allowed.
5. As against that, learned advocate Mr.Tejas Satta,
appearing on behalf of the respondent accused has submitted
that the trial court has not committed any error while passing
the impugned judgment and orders of acquittal as the
applicants complainants had not produced any documentary
evidence in support of their saying that Rs.50,00,000/- cash is
earned from their agricultural activities and they are having
agricultural land and this amount of savings was kept in cash
at their home, in fact, from 2016 onwards maximum deposits
in their accounts was only Rs.10,000/- and no further amount
was deposited or debited thereafter and therefore, under such
circumstances, the trial court has rightly considered the
evidence and has passed impugned judgment and orders of
acquittal which is in consonance with the evidence available on
record and therefore, the trial court has not committed any
error and the present applications be dismissed.
6. I have heard the learned advocate appearing for the
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respective parties and perused the material placed on record. I
have also considered the material placed by the learned
advocates by way of paper-book produced on record. From the
perusal of the record, it appears that the findings recorded by
the trial court is on consonance with the evidence which has
come forth on record and while evaluating the oral as well as
documentary evidence, the trial court has recorded the
reasons in paragraphs 12 and 17 onwards, wherein the trial
court has specifically observed that advancement of hand-loan
to the tune of Rs.50,00,000/- in cash in presence of one
Rajendrakumar Sureshkumar who was not examined by the
either side, which suggests that the transaction itself is
creating a cloud and under such circumstances, the evidence
recorded by the trial court is in consonance with the settled
legal principles and the trial court has justified in acquitting the
respondent accused from the charges levelled against him
under Section 138 of the N.I. Act. The applicants complainants
have not produced any documentary evidence worth the name
to show that what was their agricultural income during the four
years from 2016 to 2019 and whether they had sold their
agricultural produce to any person and earned that much of
amount. It was specifically averred before the trial court during
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the course of investigation that they are not paying any
income tax and therefore, they are not having any income tax
return. It was also specifically averred before the trial court
that the amount advanced by the applicants as hand-loan was
earned from their agricultural land and it was kept in cash at
their home. The facts narrated in the examination-in-chief are
completely washed away in the cross-examination of the
concerned witnesses and therefore, the trial court has rightly
considered these facts and after evaluating the evidence of the
applicants complainants, has passed the impugned judgment
and orders of acquittal in favour of the respondent accused,
which is completely justified, and in the facts and
circumstances of the present case, there was no any illegality
or any perversity found in the impugned judgment and orders
of acquittal passed by the trial court.
6.1 It is also now well settled that while exercising powers
under Section 378 of Cr.P.C., if the trial court while passing the
order has committed any illegality or any perversity or has
exceeded the jurisdiction, unless and until such facts come on
record, the Court is very slow while dealing with an acquittal
appeal. The Hon'ble Apex Court has in a series of judgments
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enunciated the principles while exercising jurisdiction under
Section 378 against acquittal, the power of the Appellate Court
is inasmuch as re-appreciate the evidence, view or re-consider
the evidence and if the Court finds that there is any illegality or
any irregularity in the judgment then in that case only, the
Court has power to entertain the appeal and interfere with the
order of acquittal. The scope and principles are enunciated by
the Hon'ble Apex Court in case of Chandrappa and others
Vs. State of Karnataka reported in (2007) 4 SCC 415, more
particularly paragraphs 42 and 43, which was subsequently re-
affirmed by the Hon'ble Apex Court Rajesh Prasad Vs. State
of Bihar and another, reported in [2022] 3 SCC 471, wherein,
the Hon'ble Apex Court has enunciated the general principles
in case of acquittal, more particularly in paragraph 26 the
general principles are set out by the Hon'ble Apex Court based
upon various decisions of the Hon'ble Apex Court. Hence, I am
in complete agreement with the findings recorded by the trial
court.
6.2 It is also worthwhile to refer to the decision of the Hon'ble
Supreme Court in the case of Babu Sahebagouda
Rudragoudar Vs. State of Karnataka, reported in AIR
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2024 SC 2252 = (2024) 8 SCC 149 wherein the Hon'ble
Supreme Court has held and observed in paras - 37 to 40 as
under:-
"37. This Court in the case of Rajesh Prasad v. State
of Bihar and Another, (2022) 3 SCC 471
encapsulated the legal position covering the field
after considering various earlier judgments and held
as below: -
"29. After referring to a catena of judgments, this
Court culled out the following general principles
regarding the powers of the appellate court while
dealing with an appeal against an order of acquittal
in the following words: (Chandrappa case
[ Chandrappa v. State of Karnataka, (2007) 4 SCC
415 ]
" 42. From the above decisions, in our considered
view, the following general principles regarding
powers of the appellate court while dealing with an
appeal against an order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no
limitation, restriction or condition on exercise of
such power and an appellate court on the evidence
before it may reach its own conclusion, both on
questions of fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds",
"very strong circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in
the nature of "flourishes of language" to emphasise
the reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind
that in case of acquittal, there is double presumption
in favour of the accused. Firstly, the presumption of
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innocence is available to him under the fundamental
principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is
proved guilty by a competent court of law. Secondly,
the accused having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded
by the trial court."
38. Further, in the case of H.D. Sundara & Ors. v.
State of Karnataka, (2023) 9 SCC 581 this Court
summarized the principles governing the exercise of
appellate jurisdiction while dealing with an appeal
against acquittal under Section 378 of CrPC as
follows: -
"8.1.The acquittal of the accused further strengthens
the presumption of innocence;
8.2. The appellate court, while hearing an appeal
against acquittal, is entitled to reappreciate the oral
and documentary evidence;
8.3. The appellate court, while deciding an appeal
against acquittal, after re-appreciating the evidence,
is required to consider whether the view taken by
the trial court is a possible view which could have
been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the
appellate court cannot overturn the order of
acquittal on the ground that another view was also
possible; and
8.5. The appellate court can interfere with the order
of acquittal only if it comes to a finding that the only
conclusion which can be recorded on the basis of the
evidence on record was that the guilt of the accused
was proved beyond a reasonable doubt and no other
conclusion was possible."
39. Thus, it is beyond the pale of doubt that the
scope of interference by an appellate Court for
reversing the judgment of acquittal recorded by the
trial Court in favour of the accused has to be
exercised within the four corners of the following
principles:-
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(a) That the judgment of acquittal suffers from
patent perversity;
(b) That the same is based on a misreading/omission
to consider material evidence on record;
(c) That no two reasonable views are possible and
only the view consistent with the guilt of the
accused is possible from the evidence available on
record.
40. The appellate Court, in order to interfere with
the judgment of acquittal would have to record
pertinent findings on the above factors if it is
inclined to reverse the judgment of acquittal
rendered by the trial Court."
7. For the foregoing reasons, the present applications
seeking leave to prefer an appeal under Section 378(4) of
Cr.P.C. fail and are hereby dismissed. Notice is discharged.
Record and Proceedings, if any, be sent back to the
concerned Trial Court forthwith.
ORDER IN CRIMINAL APPEALS
Since the leave to prefer appeals is declined, no order is
required to be passed in the criminal appeals and the same
stand disposed of accordingly.
(HEMANT M. PRACHCHHAK,J)
Dolly
