Gujarat High Court
Adarsh Co-Operative Bank Ltd. Thro ... vs Mahavir Trading Company Thro ... on 11 September, 2024
NEUTRAL CITATION
R/CR.MA/14414/2023 ORDER DATED: 11/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 14414
of 2023
In F/CRIMINAL APPEAL NO. 23935 of 2023
With
F/CRIMINAL APPEAL NO. 23935 of 2023
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ADARSH CO-OPERATIVE BANK LTD. THRO VARUN NARANBHAI
PRAJAPATI
Versus
MAHAVIR TRADING COMPANY THRO RAJESHKUMAR BABULAL
AGRAWAL & ANR.
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Appearance:
MR MANISH S SHAH(5859) for the Applicant(s) No. 1
MR.DIPEN F CHAUDHARI(6740) for the Respondent(s) No. 1
MS ASHMITA PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 11/09/2024
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL)
NO. 14414 of 2023
1. Present application for seeking leave to prefer an appeal
is filed by the applicant-original complainant challenging
the judgment and order of acquittal passed by the
learned 2nd Additional Judicial Magistrate First Class at
Palanpur in Criminal Case No.2661 of 2019 dated
01.03.2023.
2. It is the case of the complainant that the complainant is a
Manager of Aadarsh Cooperative Bank Ltd., who is
providing financial facilities to the needy people. The
respondent-accused had obtained the loan of Rs.10 Crore
and on making the default, notice under Section 32 of the
Securitisation And Reconstruction Financial of Assets and
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Enforcement of Security Interest Act, 2002 was issued to
the respondent-accused. The respondent-accused had
issued the cheque in favour of the complainant for the
amount of Rs.1,30,00,000/- bearing cheque No.224467
on 02.04.2019. On depositing the said cheque, it was
returned with an endorsement of 'drawer's signature
differ' on 03.04.2019 therefore, the complaint came to be
filed under Section 138 of the Negotiable Instruments
Act,1886 ('the N.I.Act' referred to hereinafter).
3. On recording the verification, summons came to be
issued and order was passed to try the offence as
summons triable on 23.08.2021.The respondent-accused
appeared and his plea came to be recorded wherein he
pleaded innocent and claimed to be tried. To substantiate
the allegation, the complainant has examined himself
below Exhibit-4, witnesses Mitesh Kantilal Shah below
Exhibit 23, Alakh Niranjanbhai Acharya below Exhibit 28,
Kishorkumar Himmatlal Vanand below Exhibit 37 and has
produced eight documentary evidences. On filing the
closing pursis statement of the respondent-accused
under Section 313 of the Code of Criminal Procedure,
1973 ('the Cr.P.C. referred to hereinafter). That for
recovery of the loan of entire amount, Criminal Case is
filed before the learned Magistrate Court being Criminal
Case No.132 of 2022 and account was already freezed
prior to the date of issuance of the cheque, the cheque
does not bear the signature of the respondent-accused
and there was no any legally enforceable debt occurred
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against the respondent-accused and the false case is
filed. Learned trial Court after hearing the learned parties
has acquitted the respondent-accused from the charges,
which is the subject matter of challenge before this
Court.
4. Heard the learned advocate Mr.Manish Shah for the
applicant.
5. Learned advocate Mr.Manish Shah submits that though it
is admitted by the complainant in his cross examination
that the cheque amount in question is included in the
previous judgment and order of acquittal where the
cheque was dishonored for the amount of
Rs.12,14,35,769.72/- however, as the impugned
complaint is filed at first point of time therefore, it cannot
be said that this complaint is not maintainable. Learned
advocate Mr.Shah submits that the previous complaint
where the judgment and order of acquittal was passed
was on the ground that complaint is given beyond the
period of limitation, therefore, learned trial Court has not
decided the case on merits. However, the impugned
judgment and order of acquittal was passed on the
ground that the previous complaint where it involves the
disputed cheque amount was tried.
5.1. Learned advocate Mr.Shah submits that despite the
present complaint was filed prior in point of time,
however, same was decided subsequent to the
Criminal Case No.132 of 2020. Learned advocate
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Mr.Shah submits that in view of the same learned trial
Court ought to have considered the merits of the case
and ought to have convicted the respondent-accused
for the charges, however, inspite of the same,
judgment and order of acquittal is passed. Therefore,
learned advocate Mr.Shah prays to grant leave to
prefer an appeal.
6. Considering the overall facts and circumstances as well
as record and proceedings it appears that, after this
complaint is filed, the Bank has deposited one more
cheque being cheque No.224469 which was for the
amount of Rs.of Rs.1,30,00,000/- and on dishonoring the
same, the Criminal Case No.132 of 2020 was filed before
the learned trial Court.
7. From the cross examination of complainant it transpires
that there is no detail mentioned with regard to the
instalments and period of time for repayment in the
complaint. For the loan amount the properties were
mortgaged and no details with regard to the debt of
Rs.1,30,00,000/- were mentioned in the complaint. It
further transpires from the record that signature as well
as other writings on the cheque are of different person
and from different pen. The disputed cheque was of Shri
Mahavir Trading Company and the said Mahavir Trading
Company is not made party as a respondent, however,
the proprietor was the respondent-accused. Criminal
Case No.132 of 2020 was filed under Section 138 of the
N.I.Act before the Palanpur Court where the cheque
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amount is of Rs.12,14,35,769.72/-, which includes the
disputed cheque amount also. That cheque was also
returned with an endorsement of 'Drawer's Signature
Differ'. The property which is lying with the Bank towards
the mortgage covers the earlier cheque amount as well
as the present cheque amount also. The case which is
pending before the DRT did not in the knowledge of the
complainant. The another complainant's witness, who
was cross examined by the respondent-accused, namely,
Kishorbhai, who also deposed in his testimony that after
this disputed cheuqe which was returned, another
cheque was deposited with the Bank and on returning the
same, Criminal Case No.132 of 2020 was filed before the
learned 2nd Additional Chief Judicial Magistrate at
Palanpur for the cheque amount of Rs.12,14,35,769.72/-.
On being acquittal, the criminal appeal filed before this
Court was also dismissed and the Hon'ble Supreme Court
has also confirmed the same.
8. The complainant admits in his cross examination that the
cheque amount of criminal case No.132 of 2020 includes
the disputed cheque as well. Though it is filed
subsequent to the present complaint, but the same was
decided prior to the impugned judgment against which
the appeal which was preferred before this Court being
Criminal Appeal No.1165 of 2022. This Court vide
judgment and order dated 03.04.2023 has dismissed the
complaint on the ground that the complaint is time
barred. Against the aforesaid judgment, the Special
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Leave Petitions (Criminal) was preferred before the Apex
Court being Nos.7458 and 7459 of 2023 which were also
dismissed by the Apex Court vide order dated
12.01.2024.
9. The moot question arise for consideration is that whether
respondent-accused can be tried twice for the same
offence or not. Though the complaint was filed later on,
but the trial commenced and concluded prior to the
impugned judgment and order of acquittal. Therefore, it
can be said that the respondent-accused was tried in the
subsequent judgment first and in the present complaint
later on.
10. At this stage, Section 300 of the Cr.P.C. is required
to be referred, which is reproduced hereinbelow:
"300. Person once convicted or acquitted not to be
tried for same offence.
(1) A person who has once been tried by a Court of
competent jurisdiction for an offence and convicted or
acquitted of such offence shall, while such conviction or
acquittal remains in force, not be liable to be tried
again for the same offence, nor on the same facts for
any other offence for which a different charge from the
one made against him might have been made under
sub-section (1) of Section 221, or for which he might
have been convicted under sub-section (2) thereof.
(2) A person acquitted or convicted of any offence may
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be afterwards tried, with the consent of the State
Government, for any distinct offence for which a
separate charge might have been made against him at
the former trial under sub-section (1) of Section 220.
(3) A person convicted of any offence constituted by
any act causing consequences which, together with such
act, constituted a different offence from that of which
he was convicted, may be afterwards tried for such last-
mentioned offence, if the consequences had not
happened, or were not known to the Court to have
happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence
constituted by any acts may, notwithstanding such
acquittal or conviction, be subsequently charged with,
and tried for, any other offence constituted by the same
acts which he may have committed if the Court by
which he was first tried was not competent to try the
offence with which he is subsequently charged.
(5) A person discharged under Section 258 shall not be
tried again for the same offence except with the consent
of the Court by which he was discharged or of any
Court to which the first mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of
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Section 26 of the General Clauses Act, 1897 (10 of
1897) or of Section 188 of this Code."
11. The aforesaid provision provides that there must be a
trial of the accused i.e. hearing and determination of
merits and in a summons case, the accused said to have
been tried when he appears and answered to the
intimation under Section 251 of the Cr.P.C. which take
place of a formal charge. The Criminal Case No.132 of
2020 was tried by the learned Competent Court and after
fullfledged trial, the accused came to be acquitted on the
ground that the complaint is filed beyond the prescribed
period of limitation. Though it was subsequent of
complaint, but the first conviction or acquittal is barred to
a second trial if the offence is the same. On admission of
the complainant, the cheque of Rs.12,14,35,769.72/-
includes the present disputed amount, would lead to the
conclusion that for recovery of the present disputed
amount, the proceeding has already been initiated which
was resulted into acquittal. Therefore, this Court is of the
view that considering Section 300 of the Cr.P.C., the
impugned complaint is barred and learned trial Court has
acquitted the respondent-accused after considering the
submissions and evidence placed on record.
12. Submission is made by the learned advocate Mr.Shah
that as the respondent-accused was acquitted in the
previsions judgment therefore, the amount which is
stated in the disputed cheque herein is required to be
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recovered by way of this impugned complaint. If this
submission is tested in a situation where the judgment
and order of conviction is passed and the respondent-
accused was ordered to repay the amount of cheque then
it would be the situation where respondent-accused
would suffer double jeopardy therefore, Rule of Estoppel
would apply.
13. This Court has considered the decision rendered by the
Hon'ble Apex Court in the case of Basalingappa V/s.
Mudibasappa reported in (2019) 5 SCC 418 where
summarize the principle enumerated in paragraph No.25,
which reads as under:
"25. We having noticed the ratio laid down
by this Court in the above cases on Section
118(a) and 139, we now summarise the
principles enumerated by this Court in the
following manner:
25.1. Once the execution of cheque is admitted
Section 139 of theAct mandates a presumption
that the cheque was for the discharge of any
debt or other liability.
25.2. The presumption under Section 139is a
rebuttable presumption and the onus is on the
accused to raise probable defence. The
standard of proof for rebutting the
presumption is that of preponderance of
probabilities.
25.3. To rebut the presumption, it is open for
the accused to rely on evidence led by him or
the accused can also rely on the materials
submitted by the complainant in order to raise
a probable defence. Inference of preponderance
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of probabilities can be drawn not only from
the materials brought on record by the parties
but also by reference to the circumstances
upon which they rely.
25.4. That it is not necessary for the accused
to come in the witness box in support of his
defence. Section 139 imposed an evidentiary
burden and not a persuasive burden."
25.5. It is not necessary for the accused to
come in the witness box to support his
defence."
14. The learned trial Court has assigned the detailed
reasons while acquitting the respondent-accused, this
Court has not found any perversity or any illegality in the
impugned judgment and order, therefore, this Court
deems it fit not to interfere with the judgment and order
of acquittal passed by the learned trial Court and this
application fails and deserves to be dismissed
accordingly.
15. Resultantly, this application for seeking leave to prefer
an appeal is dismissed.
ORDER IN F/CRIMINAL APPEAL NO. 23935 of 2023
In view of the dismissal of application for seeking
leave to prefer an appeal, registration of criminal appeal
is also refused.
(M. K. THAKKER,J)
M.M.MIRZA
