MAHESHBHAI FATELAL PATWARI Vs. SURESHBHAI LAVJIBHAI DIORA (PATEL)
HIGH COURT OF GUJARAT
Maheshbhai Fatelal Patwari
Sureshbhai Lavjibhai Diora (Patel)
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(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. 31/12/2007, passed in Criminal Case No. 3455 of 2002 by the learned Metropolitan Magistrate, Court No. 7, Ahmedabad recording the acquittal.
(2.) Facts, in brief, are that appellant - original complainant - Maheshbhai Fatelal Patwari, lodged a complaint before the Court that the respondent No. 1 herein had borrowed Rs.80,000.00 from him and for the same, he issued a Cheque bearing No. 94227 dtd. 11/7/2002 drawn on Bhavnagar Mercantile Co-op. Bank Ltd., Bhavnagar, which, the complainant presented in bank, but the same was returned by the bank with an endorsement "Account Closed" on 15/7/2002 and hence, the complainant issued a legal notice dtd. 26/7/2002 to the respondent No. 1 through his advocate by RPAD and UPC, which though served upon the respondent No. 1 on 29/7/2002, the respondent No. 1 did not repay the said amount and hence, the complainant was constrained to file complaint before the competent Court at Ahmedabad 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. 1 appeared before the Court. Since the accused did not plead guilty, trial was proceeded against him. Vide impugned judgment and order dtd. 31/12/2007, 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. Sanjay Prajapati for the appellant - original complainant, learned advocate Paresh Darji for the respondent No. 1 and learned APP Ms. Jirga Jhaveri for the respondent No. 2 - 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. 1 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.
3.2 The learned advocate for the appellant further submitted that the learned trial Judge has failed to take into consideration the material aspect of the matter that the respondent No. 1 - accused used to borrow money from the appellant - complainant frequently and also return the same and the appellant had trust upon the respondent - accused and hence, no record was being kept by the appellant and in the circumstance, it cannot be presumed/held that there were no legal dues from the respondent - accused.
3.3 The learned advocate for the appellant - complainant further submitted that the respondent - accused had closed his account and the appellant has not misused the cheque in question, as averred by the respondent - accused.
3.4 The learned advocate for the appellant - complainant further submitted that on one hand the respondent - accused did not reveal the time and date on which his cheque book was lost and on the other hand, he stated that one Chimanbhai had lost his cheque book, and such an act of the respondent - accused creates doubt. Further, there is nothing on record to show that the respondent - accused had taken any steps as regards his lost/stolen cheque book. He submitted that from the facts and circumstances of the case, it was clear that the respondent - accused had personally given the duly signed cheque to the complainant and the respondent - accused had created got up story with a view to mislead the Court, however, the learned trial Judge has failed to consider the same. Further, 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.
3.5 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, however, 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. ;
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