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CR.MA/2257/2010 1/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2257 of 2010
With
CRIMINAL
APPEAL No. 778 of 2010
======================================
RAMESHBHAI
TRIBHOVANBHAI PATEL - Applicant(s)
Versus
VIPINCHANDRA
K SHAH - PROP OF JAYVEER ART PRINTERS & 1 - Respondent(s)
======================================
Appearance
:
MR
MANISH J PATEL for Applicant(s) : 1,
None for Respondent(s) :
1,
MR RC KODEKAR, ADDL.PUBLIC PROSECUTOR for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 10/05/2010
ORAL
ORDER
1. Heard
learned advocate Shri M.J. Patel, learned advocate appearing for the
applicant-appellant.
2. The
applicant, original complainant in Criminal Case No. 4252 of 2008
(New) and Criminal Case No. 1285 of 2005 (Old) registered in the
Court of Metropolitan Magistrate, N.I.Act, Court No.2, Ahmedabad, has
approached this Court challenging the order of acquittal dated
8.1.2010 passed by the Metropolitan Magistrate acquitting the accused
respondent hereinabove of the charge of committing the offence
punishable under Section 138 of the Negotiable Instruments Act,
1881(hereinafter referred to as the N.I. Act for the sake of
brevity).
3. The
facts in brief leading to filing this application for seeking leave
to appeal deserve to be set out as under:
3.1 It
was the case of the complainant before the Court that the complainant
is a Tax Consultant and original accused was owning a firm under the
name and style of Jaiveer Art Printers and is in printing business.
They are known to each other. The complainant advanced various
amounts of money from the year 1998 to 2002 totaling to Rs.4,25,000/-
without any interest to the accused on account of friendly
relationship between the two. The complainant used to obtain
Promissory Notes while advancing the amounts as stated hereinabove to
the accused and on demanding the money accused issued cheque dated
15th June, 2005 bearing number No.047649 for Rs.4,25,000/-
and on presentation of the same, it was returned with endorsement
opening balance insufficient on 18.6.2005. On 27.6.2005
statutory notice came to be issued through his advocate, which was
replied vaguely by the accused and as the money was not paid within
the time limit, the complaint was presented for action against the
accused-respondent under Section 138 of the N.I. Act. On 27.7.2005,
the Court after taking evidence and appreciating the same, came to
the conclusion that the accused was successful in rebutting the
presumption with regard to the liability and complainant could not
establish his case in respect of the cheque being issued against the
discharge of the said legal liability of acquitting the accused under
Section 138 of the N.I. Act vide its order dated 8.1.2010 in Criminal
Case No.4252 of 2008 (New) and Criminal Case No. 1285 of 2005 (Old).
4. Being
aggrieved and dissatisfied with the order of acquittal, the
applicant-appellant (original complainant) hereinabove has preferred
this application under Section 378 of the Code of Criminal Procedure,
1973 seeking leave to appeal.
5. Shri
M.J.Patel, learned advocate appearing for the complainant invited
this Court’s attention to the order impugned and submitted that the
documentary evidence enlisted thereunder includes copy of the
income-tax return at Exh.19 and balance-sheet at Exh.18. These
documents should have been accepted to be valid documents as these
evidences indicate the debts and the issuance of the cheque for
discharging the same. The Court has patently erred in not
appreciating these documents in its true perspective and hence the
order of acquittal deserves to be quashed and set aside. Shri Patel,
learned advocate appearing for the applicant hereinabove further
submitted that non-furnishing of copy of the reply to the notice
issued by the complainant and non-production of the Promissory Notes
could not have been factors weighing against the applicant as
otherwise. The applicant had established its case with regard to debt
in question by producing income-tax return and the balance-sheet.
Shri Patel further submitted that accused could not be said to have
rebutted the presumption which, the Court is otherwise required to
draw under section 139 of the N.I. Act. The presumption is in favour
of the complainant and against the accused who is the drawer of the
cheque, when the cheque is said to have been signed by the drawer i.e
the accused hereinabove. He further submitted that, therefore, the
order of acquittal needs to be quashed and aside and leave,
therefore, may be granted for filing the appeal challenging the order
of acquittal.
6. This
Court is unable to accept the submission of Shri Patel for granting
leave for laying appeal challenging the order of acquittal for the
following reasons, namely:-
6.1. The
complainant in his complaint consistently admitted that as and when
he had advanced money on account of friendly relationship with the
accused, he had been careful in obtaining Promissory Notes at all the
time. In his cross-examination also in answer to the question that
whether he had taken Promissory Note, he was ready and willing to
produce those Promissory Note as and when required. The complainant
has also indicated in his cross-examination that the entire sum of
Rs.4,25,000/- i.e, the cheque amount had been advanced over the
period of time from 1998 to 2002 or thereafter but he has not
produced any Promissory Note and he has also admitted in his
cross-examination that it is his practice to return the Promissory
Note to the author of the note as and when the author returns back
the money. This admission coupled with the fact that non-availability
of the Promissory Note by the complainant are sufficient to indicate
that the complainant did not have those notes and the defence put up
by the accused is believable and acceptable.
6.2. It
is also important to note that the Court has recorded its finding
with regard to the complainant failing in establishing the writing of
the cheque by the accused. The complainant has, in answer to the
question during the cross-examination, said that he recognized only
the signature of the accused but does not recognize the hand writing
of the accused. The advocate for the accused in the cross-examination
categorically made suggestion with regard to issuance of blank cheque
towards security in the year 1998. The complainant has not cared to
produce reply issued by the accused to the complainant nor has he
cared to indicate any substance of the reply. The entire question
with regard to reply is said to be brushed aside by merely referring
to vague reply coming forward by the accused. The trial Court
after relying upon the ratio laid down in the case of Krishna
Janardhan Bhat vs. Dattatraya G. Hegde reported in 2008 Criminal Law
Journal 1172 came to the conclusion that the offence cannot be said
to have been proved beyond doubt and acquitted the accused-respondent
hereinabove of the charge of committing the offence punishable under
Section 138 of the Code of Criminal Procedure, 1973.
7. This
Court, would, naturally, be very slow in interfering with the order
of acquittal, unless and until it is established by the
applicant-appellant that sustaining the order of acquittal would
result into miscarriage of justice.
8. In
view of the aforesaid discussion, this Court is amply persuaded to
hold that sustaining of the order of acquittal would in any case not
amount to resulting in miscarriage of justice. Therefore, the order
of acquittal calls for no interference and the application deserves
to be rejected. Accordingly, the application is rejected.
9. In
view of the order passed in the above Criminal Miscellaneous
Application, the appeal is also required to be disposed of.
Accordingly, the appeal disposed of.
(S.
R. Brahmbhatt, J. )
sudhir
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