Gujarat High Court
Urmilaben Hiteshbhai Kathrotiya vs State Of Gujarat on 31 January, 2025
NEUTRAL CITATION
R/CR.MA/7852/2024 ORDER DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 7852 of
2024
In
F/CRIMINAL APPEAL NO. 13241 of 2024
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URMILABEN HITESHBHAI KATHROTIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR.KEYUR JALDEEP SHAH(14552) for the Applicant(s) No. 1
PRASHANTKUMAR R SHARMA(8591) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 31/01/2025
ORAL ORDER
1. The present application is filed by the applicant - original
complainant 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 order dated 29.01.2024
passed by the learned Additional Small Cause Court, Surat
in Criminal Case No.16161 of 2019, 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 (hereinafter referred to as 'the N.I.
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Act"). The applicant and the respondent No.2 are hereinafter
referred to as "the complainant" and "the accused" as they
stood in the original case for the sake of convenience, clarity
and brevity.
2. The brief facts culled out from the memo of the present
application as well as the impugned judgment are as under:
2.1 The complainant is in the business of selling cotton threads,
jari, yarn and other textile products and the accused, who is
also in the same business, had a long-standing business
relationship with the complainant. The accused had
purchased goods from 13.06.2017 to 01.08.2017 vide various
challans and an amount of Rs.16,23,932/- was due from the
accused. The complainant purchased yarn work
Rs.3.02,521/- from the accused and in all an amount of
Rs.13,21,420/- was outstanding from the accused towards
which the accused gave cheque No.999635 dated 23.08.2017
for Rs.1,60,000/- and cheque No. 999636 dated 06.02.2019 for
Rs.11,61,420/- both drawn on The Sutex Cooperative Bank
Limited, Salabatpura Branch from Account
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No.2480141002190 of the accused. The complainant
deposited cheque No. 999635 dated 23.08.2017 in his bank
and the same returned unpaid, and after the due procedure,
the complainant filed Criminal Case No.52433 of 2017 which
is pending before the 8th Additional Chief Judicial
Magistrate, Surat. The complainant, thereafter, deposited
cheque No.999636 dated 06.02.2019 in Yes Bank Limited,
Sahara Darwaja Branch and the same returned unpaid with
the endorsement "Funds Insufficient". The complainant,
thereafter, gave the statutory demand notice, which was
refused and the notice is returned unserved with the
endorsement that the owner has refused to accept the same,
and hence, returned to sender. The complainant filed the
criminal case under Section 138 of the N.I.Act on 15.04.2019.
2.2. The accused was duly served with the summons and
appeared before the learned Trial Court and her plea was
recorded at Exh.06 and the evidence of the complainant was
taken on record. The complainant was examined at Exh.04
and Hiteshbhai Ghanshyambhai Kathrotiya was examined
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as a witness and the complainant produced 13 documentary
evidences in support of her case. After the closing pursis was
filed, the further statement of the accused under section 313
of the Cr.P.C. was recorded wherein the accused denied all
the evidence of the complainant and refused to step into the
witness box or examine defence witnesses. The arguments of
the learned advocates for both the parties were heard and by
impugned judgment and order, the learned Trial Court
acquitted the accused from the offence under Section 138 of
the N.I.Act.
3. Being aggrieved and dissatisfied with the impugned
judgment and order, the applicant has preferred the present
application seeking leave to appeal mainly stating that the
learned Trial Court has not properly considered and
interpreted the evidence on record and presumptions of
Sections 118, 138 and 139 of the N.I.Act and the applicant has
proved all the ingredients of Section 138 of the N.I.Act. The
applicant has produced documentary evidence including all
the bills, by which, the goods were delivered to the
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respondent No.2 and the applicant has proved that an
amount of Rs.13,21,420/- was outstanding, towards which,
two cheques were issued and the cheques in question were
for Rs.13,21,420/-. That the cheques have remained unpaid,
but the learned Trial Court has not considered that the
address of Helly Fab and Shreyansh Enterprise is the same
and only the old challans of Helly Fab were used and this
fact has not been rebutted by the respondent No.2. The
applicant has proved that the cheques were given in
discharge of a liability and signed by the respondent No.2
and as the impugned judgment and order is perverse, it is
required to be quashed and set aside.
4. Heard learned advocate Mr.Keyur J. Shah for the applicant
and learned APP Mr. Bhargav Pandya for the respondent -
State. Though served the respondent No.2 has not appeared
either in-person or through an advocate. Perused the paper-
book produced by the learned advocate for the applicant.
5. On perusal of the evidence produced by the applicant before
the learned Trial Court, it is on record that the complainant
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has produced the delivery challans at Exhs. 8 to 15 and the
bills at Exhs.16 to 18. The bill of goods purchased from the
accused are produced at Exh.19 and the cheque No.999636 is
produced at Exh.23, the return memo is produced at Exh.24
and the office copy of the notice sent to the accused is
produced at Exh.25, R.P.A.D. receipt is produced a Exh.26,
the notice returned unserved is produced at Exh.27 and the
online status of the notice, which is returned, is produced to
Exh.28. During the cross-examination, the complainant has
stated that she has printed bills and challans of "Shreyans
Enterprise" and has denied that the cheque has been
misused by her. The learned Trial Court has considered that
the applicant has not produced any evidence to show that
the accused is the owner of "Radhe Jewellery" as the goods
mentioned in the challans were sent to "Radhe Jewellery".
From the document produced at Exh.19, prima facie, it
appears that the accused had sent "Pet Mono Filament Yarn"
of Rs.3,02,512/- on 25.08.2017 to Shreyans Enterprise and the
Tax Invoice bears the signature of the accused, which is the
same signature on the cheque. It is pertinent to note that the
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notice has been refused by the accused and no reply to the
notice has been given. Moreover, the accused has not
stepped into the witness box or examine witnesses on her
behalf and from the evidence. It prime-facie transpires that
there was a business transaction between the complainant
and the accused and the learned Trial Court has not
considered the same.
6. At this juncture it would be fit to refer to the observation of
the Apex Court in the case of Kalamani Tex and another Vs.
P Balasubramanian reported in (2021) 5 SCC 283 made in
Para-17 and Para-18, which are as under :
"17. Even if we take the arguments raised by the
appellants at face value that only a blank cheque and
signed blank stamp papers were given to the
respondent, yet the statutory presumption cannot be
obliterated. It is useful to cite Bir Singh v. Mukesh
Kumar12, where this court held that:
"Even a blank cheque leaf, voluntarily signed
and handed over by the accused, which is
towards some payment, would attract
presumption under Section 139 of the
Negotiable Instruments Act, in the absence of
any cogent evidence to show that the cheque
was not issued in discharge of a debt."
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18. Considering the fact that there has been an admitted
business relationship between the parties, we are of
the opinion that the defence raised by the appellants
does not inspire confidence or meet the standard of
'preponderance of probability'. In the absence of any
other relevant material, it appears to us that the High
Court did not err in discarding the appellants'
defence and upholding the onus imposed upon them
in terms of Section 118 and Section 139 of the NIA."
7. In light of the above settled principles of law and
considering the evidence on record the arguments of the
learned advocate for the applicant deserve consideration,
and consequently, the application seeking leave to present
an appeal is allowed.
(S. V. PINTO,J)
*F.S.KAZI.....
