ASHOKKUMAR C.JOSHI,J. -
(1.) This appeal is filed by the appellant - original complainant under the provisions of Sec. 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order dtd. 10/6/2014, passed in Criminal Case No. 127 of 2005 by the learned Judicial Magistrate First Class, Prantij, recording the acquittal.
(2.) Nutshell facts are that appellant - original complainant - Rameshkumar Vitthalbhai Patel, lodged a complaint before the Court that the respondent No. 2 herein had borrowed Rs.20,00,000.00 from him for personal use and assured to repay within a month or one and half months and for the same, he issued a Cheque bearing No. P.698868 dtd. 17/11/2004 drawn on The Sabarkantha District Central Co-op. Bank Ltd., Prantij Branch of Account No. 8091, which, the complainant presented in bank, but the same was returned by the bank with an endorsement "Account Closed" and hence, the complainant issued a legal notice dtd. 7/12/2014 to the respondent No. 2 through his advocate by RPAD and UPC, which though served upon the respondent No. 2 on 11/12/2014, the respondent No. 2 did not repay the said amount and gave vague reply on 15/12/2004, the complainant was constrained to file complaint before the competent Court at Prantij under Sec. 138 of the Negotiable Instruments Act, 1881 (herein after referred to as "the NI Act").
2.1 Upon such complaint being filed and subsequent to service of summons, the respondent No. 2 appeared before the Court. Since the accused did not plead guilty, trial was proceeded against him. In support, the appellant - complainant has produced oral as well as documentary evidence. Vide impugned judgment and order dtd. 10/6/2014, the learned trial Judge acquitted the accused person. Being aggrieved by the same, the appellant - original complainant has preferred the present appeal.
(3.) Heard, learned advocate Mr. Yatin Soni for the appellant original complainant, learned advocate Ms. Devangi Solanki for learned advcoate Mr. N. V. Gandhi for the respondent No. 2 and learned APP Ms. Jirga Jhaveri for the respondent No. 1 - State.
3.1 The learned advocate for the appellant - original complainant has mainly contended that the learned trial Judge ought to have convicted the accused inasmuch as the cheque in question was duly signed by the respondent No. 2 and came to be dishonoured when presented before the bank with an endorsement "Account Closed". Furthermore, in his submission, the learned trial Judge ought to have appreciated the fact that the cheque was issued for discharge of legal liability towards complainant. Further, the signature on the cheque was also not in dispute. In his submission, the learned trial Judge ought to have held in view of the evidence on record that the accused had failed to rebut the onus of proof and statutory presumption against him.
3.2 The learned advocate for the appellant further submitted that three conditions to constitute an offence under Sec. 138 of the NI Act viz. i) cheque ought to have been presented in the bank within six months or within its validity, ii) holder in due course ought to have make demand by giving notice in writing within 30 days on receiving information as to return of cheque and iii) drawer of the cheque should have failed to make payment within 15 days of receipt of such notice, are satisfied and fulfilled by the appellant, however, the learned trial Judge failed to consider this aspect of the matter in true and proper perspective.
3.3 The learned advocate for the appellant - complainant submitted that the cheque in question was issued on 5/10/2004 (PDC), which was dtd. 17/11/2004 and on that day i.e. 5/10/2004, the account was very much in force and subsequently, the account came to be closed by the respondent - accused, which clearly shows mala fide intention on the part of the respondent - accused, however, the learned trial Judge has failed to appreciate such an important aspect of the matter.
3.4 Moreover, the learned advocate for the appellant - complainant submitted that the learned trial Judge ought to have appreciated the fact that out of Rs.20.00 lakh, the appellant - complainant had borrowed Rs.2.00 lakh from his uncle Nathanbhai Maganbhai Patel, Rs.2.00 lakh from Bharatkumar Narandas and Rs.2.00 lakh from his friend Arvindbhai Chimanbhai Patel and rest Rs.14.00 lakh, he had arranged from his personal savings and accordingly, the amount in question was very well explained, however, the learned trial Judge has disbelieved the same and observed that considering the status of the appellant - complainant as Secretary and his salary of Rs.1,000.00 per month as well as the income from agriculture which is maximum Rs.4.00 lakh, the same raises doubt as regards lending of such a huge amount to the respondent - accused. The learned advocate for the appellant - complainant also submitted that the learned trial Judge also erred in observing that the appellant - complainant has not disclosed such income before the Income Tax Department nor has produced any books of accounts and thereby, has failed to appreciate the fact that agriculture income is exempted under the Income Tax Act.
3.5 The learned advocate for the appellant - complainant further submitted that as per the case of the respondent - accused, he had issued the cheque as one Kodarbhai had borrowed Rs.10,000.00 because of illness of his son, against security, on behalf of Kodarbhai. However, it cannot be believed that the respondent - accused, who was serving as an Inspector, would give security for such a trivial sum of Rs.10,000.00 that too, on behalf of that Kodarbhai. It is further the case of the appellant - complainant that he even did not know this Kodarbhai. Further, it is submitted that the respondent - accused has not examined this witness.
3.6 The learned advocate for the appellant - complainant submitted that the learned trial Judge has erred in appreciating the document Exh. 50 inasmuch as, admittedly, the said document was executed by the appellant - complainant, however, it was issued for a purpose that when the appellant was serving as an Inspector, allegations of misappropriation of fund were levelled against him and inquiry was initiated and eventually, dismissed and as instructed by his head office, he got issued such a certificate from the mandli to the effect that no amount is due and payable by the respondent - accused and accordingly, the appellant had given the certificate. It is submitted that the said certificate was issued on behalf of the mandli and not in individual capacity and accordingly, the learned trial Judge has materially erred in appreciating the said document.
3.7 The learned advocate, taking this Court through the oral as well as the documentary evidence on record, submitted that though the case against the accused was proved beyond reasonable doubt, the learned trial Judge has not properly appreciated the evidence on record and thereby, has committed an error in recording acquittal and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to the facts and evidence on record. Accordingly, he urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal.
3.8 In support, the learned advocate for the appellant - complainant has relied upon following decisions:
i) Bir Singh v. Mukesh Kumar, 2019 Sce J 222;
ii) Patel Jayantibhai Mafatlal v. State of Gujarat, 2018(0) AIJEL-HC 239654. ;