Gujarat High Court
Atul Natwarlal Pandya vs State Of Gujarat on 12 September, 2024
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R/CR.MA/1697/2024 ORDER DATED: 12/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 1697 of
2024
In F/CRIMINAL APPEAL NO. 34124 of 2023
With
F/CRIMINAL APPEAL NO. 34124 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 1698 of 2024
In
F/CRIMINAL APPEAL NO. 34093 of 2023
With
F/CRIMINAL APPEAL NO. 34093 of 2023
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ATUL NATWARLAL PANDYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
NIRAV C BHATT(7420) for the Applicant(s) No. 1
MS HONEY H THAKKAR(12467) for the Respondent(s) No. 2
MS MONALI BHATT, ADDL.PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 12/09/2024
COMMON ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATIONS (FOR LEAVE TO APPEAL)
1. Since the issue raised in the these appeals are similar,
they are being decided by a common order. The facts of
Criminal Misc. Application No.1697 of 2024 are taken for
the purpose of adjudication.
2. This application is filed seeking leave to prefer an appeal
against the judgment and order of acquittal passed by
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the learned Additional Chief Judicial Magistrate Court,
Vadodara in Criminal Case No.32868 of 2019 dated
01.07.2022 whereby the respondent-accused was
acquitted from the charges.
3. It is the case of the complainant that the complainant is
running the company and in the said company father of
the respondent-accused and the respondent-accused
were supplying the labours. On raising demand of hand-
loan by the respondent-accused, the complainant had
lent the amount of Rs.2 Lac and and Rs.1 Lac through the
cheque on 11.04.2016. For the repayment of the
aforesaid amount, two cheques were issued by the
respondent-accused being cheque No.000203 of Rs.1.40
Lac and cheque No.000205 of Rs.50,000/- in favour of the
complainant in the capacity of HUF. The said cheques
were returned with an endorsement of 'funds insufficient'
therefore, the complaint came to be filed after following
due procedure under the Negotiable Instruments Act,
1886 ('the N.I.Act' referred to hereinafter).
4. On recording the verification, summons were issued to
the respondent-accused and respondent-accused
appeared and his plea came to be recorded on
11.12.2019 thereafter the case was posted for the cross
examination of the complainant. As the complainant and
his advocate remaining absent before the learned trial
Court, therefore, notice below Exhibit 29 was issued to
the complainant on 21.05.2021. The notice was received
by the respondent-accused however, the respondent-
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accused did not appear before the learned trial Court. As
the respondent-accused did not appear for the cross
examination, the learned trial Court has passed an order
below Exhibit 23 discarding the chief examination of the
complainant from the record. Learned trial Court,
thereafter, has recorded the further statement under
Section 313 of the Code of Criminal Procedure, 1973
wherein the respondent-accused has claimed to be
falsely implicated and denied for any legally enforceable
debt. Learned trial Court after considering the
documentary evidence produced by the complainant has
acquitted the respondent-accused mainly on two grounds
one, that the complainant is not holder in due course or
cheque and second that despite the service of notice the
complainant did not remain present before the learned
trial Court and thereby lead to the conclusion that the
complainant is not interested in conducting the
proceedings pending before the Court. The said judgment
and order of acquittal dated 01.07.2022 is the subject
matter of challenge before this Court.
5. Heard the learned advocate Mr.N.C.Bhatt for the
applicant-original complainant.
5.1.Learned advocate Mr.Bhatt submits that though it is
observed by the learned trial Court in the impugned
judgment and order of acquittal that despite service of
notice below Exhibit 29, the complainant did not
remain present. Learned advocate Mr.Bhatt submits
that no such notice is received by the complainant and
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due to miscommunication on the part of the
complainant and his advocate, the complainant did not
remain present. Learned advocate Mr.Bhatt submits
that the learned trial Court has acquitted the
respondent-accuse without scrutinizing the evidence
placed on record and therefore, judgment and order of
acquittal is required to be interfered with as well as
application for seeking leave to prefer an appeal is
required to be granted.
6. Considering the submissions made by the learned
advocate and perusing the record and proceedings
thoroughly it transpires from the record that, on being
summoned the respondent-accused appeared before the
Court on 11.12.2019. After recording the plea, case was
posted for the cross examination of the complainant as
well as application was also filed below Exhibit 11 for
issuance of the Bailable Warrant to the complainant as he
was not remained present after his verification was
recorded. Despite of the same, the complainant and his
advocate did not remain present on any dates. On one
occasion the learned trial Court has recorded in the
rojkaam dated 05.08.2021 that the advocates for the
parties are present and therefore, tentative exhibits were
given to the documentary list. Thereafter on 07.08.2021
absence of the complainant is recorded and the presence
of the learned advocate is also recorded by the learned
trial Court. It appears that the complainant and his
advocate remained absent on 10.12.2021, 07.01.2022,
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11.02.2022, 10.03.2022, 21.04.2022, 09.06.2022,
01.07.2023. During this period the learned trial Court has
passed the order below Exhibit 23 discarding the chief
examination of the complainant from the record.
7. This Court is of the view that the statements made in the
examination in chief, loose much of their credibility and
weight unless they are put into crucible of cross
examination and emerged unscathed from the test.
Learned trial Court though has passed an order below
Exhibit 23 discarding the chief examination from the
record of the plaint, the complainant has not challenged
the same till the final disposal of the appeal. This shows
that the complainant himself is not interested in the
proceedings and therefore, learned trial Court has rightly
dismissed the complaint after considering the evidence.
8. Subsequently, Exhibit 29 notice was issued to the
complainant and endorsement shows that the same was
received by the complainant. It is contended by the
learned advocate that he did not receive the same,
however, record shows contrary fact. The endorsement
on summons shows the signature of the complainant and
therefore, it can be presumed that address, which is
stated in the complaint on which the summons which was
issued by the learned trial Court is served and signed by
the complainant is received by him.
9. Learned trial Court is justifying in dismissing the
complaint on the ground that despite sufficient
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opportunity complainant fails to remain present before
the Court.
10. The cheque which is produced below Exhibit 13
which was deposited with the Bank and the slip which is
produced below Exhibit 14 suggests that it was deposited
in the account of Atul N. Pandya (HUF) i.e. the Karta of
the Hindu Undivided Family. The proceedings which are
initiated was by Atul N. Pandya on his personal capacity
not as a Karta of the HUF. It is well settled that in joint
family, no member of the family can say that he or she is
the account holder of the Bank, there is unity of
ownership and community of interest therefore, filing the
complaint on his individual capacity though the cheque
was deposited and received as a Karta of HUF lends the
prosecution as not tenable in the eyes of law. Therefore,
after considering the cheque which was produced below
Exhibit 13 and the slip of depositing the cheque with the
Bank below Exhibit 14 and the notice which is issued
below Exhibit 16, learned trial Court has rightly held that
the complainant is not holder in due course of the cheque
11. 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
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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
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."
12. 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
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of acquittal passed by the learned trial Court and this
application fails and deserves to be dismissed
accordingly.
13. Resultantly, both these applications for seeking leave
to prefer an appeal are dismissed.
ORDER IN F/CRIMINAL APPEALS
In view of the dismissal of applications for seeking
leave to prefer an appeal, registration of criminal appeals
are also refused.
(M. K. THAKKER,J)
M.M.MIRZA
