Gujarat High Court
Gopalchand Hotchand vs Vagwani Gurmukhdas Bhagwandas & on 4 November, 2015
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
R/CR.A/1834/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1834 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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GOPALCHAND HOTCHAND....Appellant(s)
Versus
VAGWANI GURMUKHDAS BHAGWANDAS &
1....Opponent(s)/Respondent(s)
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Appearance:
MR AMAR D MITHANI, ADVOCATE for the Appellant(s) No. 1
MR KUNAL S SHAH, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
MR. H.L.JANI, APP for the Opponent(s)/Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 4/11/2015
ORAL JUDGMENT
1. Leave to amend the surname of the Accused no.1 as "WASWANI"
2. The present Appeal is directed against the impugned judgment and order rendered in Criminal Case No. 543 of 2000 by the learned Judicial Magistrate First Class dated 8.1.2004 recording acquittal Page 1 of 14 HC-NIC Page 1 of 14 Created On Thu Nov 05 03:02:10 IST 2015 R/CR.A/1834/2005 JUDGMENT of Respondent No.1 / Original Accused for the offence under Section 138 of the Negotiable Instruments Act.
3. Heard learned Advocate Shri Amar D. Mithani for the Appellant / Original Complainant, learned Advocate Shri Kunal S. Shah for Respondent No.1 / Original Accused and learned APP Shri H.L.Jani for the Respondent - State of Gujarat.
4. Learned Advocate Shri Amar D. Mithani has referred to the reasons recorded for the findings and conclusion recording acquittal and submitted that the court below has accepted the submissions with regard to the payment of cheque and other liability as well as the other aspects. However, as could be seen from the judgment, only on the basis of the judgment of the High Court, the acquittal is recorded. He submitted that as observed in the judgment of the High Court of Gujarat reported in 2003 (3) GLR 2207 in case of Urban Co-operative Credit Society v. State of Gujarat that the cheque must be drawn on an account maintained by the drawer. He submitted that on the basis of this judgment it has been observed that the date on which the cheque was drawn on 20.10.1999 the account was already closed on 28.9.1999 and therefore the cheque was not drawn on an account which was operational or maintained. Learned Advocate Shri Amar D. Mithani submitted that this judgment has been held to be Page 2 of 14 HC-NIC Page 2 of 14 Created On Thu Nov 05 03:02:10 IST 2015 R/CR.A/1834/2005 JUDGMENT per incuriam by subsequent judgment of High Court reported in 2005 (1) GLR 638 in case of Hashmikant m. Sheth v. State of Gujarat & Anr. He pointedly referred to the observations made in this judgment and submitted that it has been observed that the judgment of the Hon'ble High Court reported in case of Urban Co- operative Credit Society v. State of Gujarat (supra) is not a good law. He also referred to the background of the facts and submitted that the court below has accepted the version of the complainant in all count and only relying on the aforesaid judgment it has not been held to be good law, acquittal is recorded.
5. Learned Advocate Shri Amar D. Mithani referred to the testimony of the complainant at Exh.27. He also referred to the testimony of PW-2 Branch Manager and submitted that the witness has confirmed the cheque and the signature of Respondent No.1 / Original Accused and the memo with the cheque returned due to the closure of the account. He emphasized that a specific question was put and it has been stated in response thereto that Respondent No.1 - Original Accused was not even maintaining the minimum balance and the cheques are used to return and therefore the account has been closed. He submitted that the notice as required under the law has been given which has also not been replied. Therefore, learned Advocate Shri Mithani submitted that the notice Page 3 of 14 HC-NIC Page 3 of 14 Created On Thu Nov 05 03:02:10 IST 2015 R/CR.A/1834/2005 JUDGMENT was served upon Respondent No.1 / Original Accused for which he referred to the notice and the acknowledgment produced on record at Exh. 33 to Exh. 35. Learned Advocate Shri Mithani has also referred to and relied on the judgment of the Hon'ble Apex court reported in (2012) 13 SCC 375 in case of Laxmi Dyechem v. State of Gujarat and Ors.
6. Learned Advocate Shri Kunal S. Shah for Respondent No.1 / Original Accused has referred to the papers and submitted that the notice has not been served to Respondent No.1-Original Accused as the address is different and the signature is also different on the cheque which has been confirmed in the testimony of the complainant. He therefore submitted that as no notice can be said to have been served, the judgment and order recording acquittal is just and proper. In support of this submission, he has referred to and relied on the judgment of the Hon'ble Apex Court reported in 2009 (0) GLHEL-SC 43950 in case of M.D.Thomas v. P.S.Jaleel and submitted that as observed in this judgment, if the notice is served upon the wife, then it has not been treated as compliance of the mandate of law. Similarly, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2008) 4 SCC 54 in case of Krishna Janardhan Bhatt v. Dattatraya G. Hegde and submitted that if the amount is more than Rs.20,000/- then the Page 4 of 14 HC-NIC Page 4 of 14 Created On Thu Nov 05 03:02:10 IST 2015 R/CR.A/1834/2005 JUDGMENT payment has to be with cheuqe and therefore also the judgment and order recording acquittal may not be disturbed. He submitted that the relevant dates are required to be mentioned that though it is the version of the complainant that he knew as a neighbour and had advanced the money to the Respondent Accused, he would have filed the suit if it was not repaid within a reasonable period. He therefore submitted that as the debt is time barred, this complaint is resorted, which is not permitted. In support of this submission he has referred to and relied upon the judgment reported in 2001 CRI.L.J 24 in case of Sasseriyil Joseph v. Devassia and submitted that such proceedings under the Negotiable Instruments Act cannot be permitted to recover such time bared debts.
7. Learned APP Shri H.L.Jani for the Respondent State has submitted that appropriate order may be passed.
8. In view of this the rival submissions, it is required to be considered whether the present Appeal deserves to be allowed.
9. As could be seen from the background of the facts, the Appellant / Original Complainant and Respondent No.1 / Original Accused were neighbours and the advances have been made and thereafter some time was consumed. It is also brought on record that the father of Respondent No.1-Original Accused had requested and therefore the recovery was not insisted. It is in this background Page 5 of 14 HC-NIC Page 5 of 14 Created On Thu Nov 05 03:02:10 IST 2015 R/CR.A/1834/2005 JUDGMENT when ultimately the cheque is given and returned, whether it can be said to be in discharge of the debt and liability. As it transpires from the reasons recorded by the court below, it has been accepted that there was a transaction by which the money was advanced to Respondent No.1 / Original Accused. The cheque was towards the discharge of the liability which has returned back. The signature of Respondent No.1/Original Accused has also been identified by the Bank Manager.
However, the submission made by learned Advocate that since the payment is made from an account which has been closed, the provisions of Section 138 of the Negotiable Instruments Act would not be attracted. The emphasis was made that he has not made the stop payment but the account itself was closed. However, a close scrutiny of the relevant dates would reveal that the cheque was given and the account was closed by the Bank as Respondent No.1 / Original Accused was not operating it well. Therefore the submission which has been made relying on the judgment of the High Court in case of Urban Co-operative Credit Society v. State of Gujarat (supra) that the cheque must have been drawn from the account maintained by Respondent No.1 / Original Accused is not relevant as it has been clearly discussed and observed in a subsequent judgment of the High Court of Gujarat in Page 6 of 14 HC-NIC Page 6 of 14 Created On Thu Nov 05 03:02:10 IST 2015 R/CR.A/1834/2005 JUDGMENT case of Hashmikant M. Sheth v. State of Gujarat & Anr. (supra) and that the judgment of the High Court in case of Urban Co-operative Credit Society v. State of Gujarat (supra) is per incuriam and is not a good law. A detailed discussion has been made in a judgment in case of Hashmikant M. Sheth v. State of Gujarat & Anr. (supra) referring to the object for which Section 138 of the Negotiable Instruments Act was introduced by the legislature. It has been clearly held and observed:
"19. Viewed in the light of the object with which Section 138 of the Act was introduced by legislature, there is no manner of doubt that the phrase "any cheque drawn by a person on an account by him with banker" will have to be construed to mean that "any cheque drawn by a person on an account maintained and closed by him". The words "on an account maintained" do not suggest that cheque must be drawn on an account which is in operation. The words "account maintained" would include "an account maintained and closed in past".
20. In this connection, it would be appropriate to refer to the observations made by Lord Denning, L.J., on the interpretation of statutes, which has been reproduced by the Supreme Court in the case of N.K. Jain v. C.K. Shah, reported in AIR 1991 SC 1289, to fully understand the implication of Section 138 of the Act, as interpreted by the superior Courts of jurisdiction, which reads as follows:
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HC-NIC Page 7 of 14 Created On Thu Nov 05 03:02:10 IST 2015 R/CR.A/1834/2005 JUDGMENT "The English language is not an instrument of mathematical precision. Our literature would be much poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if the Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do so as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
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10. Thus the proposition of law laid down by the Hon'ble Apex Court has to be kept in mind that the cheque has been returned for insufficiency of the amount which is a genus of which the expression "that account being closed" is specie. The underlying object or the purpose of Section 138 of the Negotiable Instruments Act is required to be considered as a guideline that it is a penal in nature and it has been enacted with the object making the banking activity more effective and to enhance the credibility of such instrument and to induce faith in the efficiency in banking operation. If such contentions are permitted to be raised it would frustrate the very purpose which the legislature has desired for the purpose of inspiring confidence in the commercial transaction.
Thus, this kind of submissions made by learned Advocate Shri Kunal S. Shah for Respondent No.1 / Original Accused that the cheque was drawn from the account which was closed by the bank and therefore it would not attract Section 138 of the Negotiable Instruments Act relying upon the judgment of the High Court in case of Urban Co-operative Credit Society v. State of Gujarat (supra) is throughly misconceived. At the cost of repetition, it is stated that the said judgment has been held to be per incuriam not a good law.
11. The Court below while recording the reasons for acquittal has Page 9 of 14 HC-NIC Page 9 of 14 Created On Thu Nov 05 03:02:10 IST 2015 R/CR.A/1834/2005 JUDGMENT mainly focused on this judgment only though most of the ingredients are said to have been fulfilled holding in favour of the complainant, but relying only on this judgment of the High Court in case of Urban Co-operative Credit Society v. State of Gujarat (supra) the acquittal has been recorded, which is totally misdirected and misconceived. Further, the another facet of the submission made by learned Advocate Shri Kunal S. Shah about non service of the notice reflecting the conduct and the attitude of Respondent No.1 / Original Accused. A close scrutiny would show that the address has shown that originally in the record the notice has been served and he has also accepted the notice at the same address. May be he may have changed the address or having another address, but it would not make any difference inasmuch as the notice is served by RPAD which is produced on record. Further, the burden would shift on the Respondent Accused who claims that the notice has not been served by leading necessary evidence discharging the burden. The letter or the notice served by RPAD would lead to the presumption about the service. The said presumption could be rebutted by leading the necessary evidence that it has not been served. Further, though the Respondent No.1 / Original Accused claims about the another address, he has not brought on record any other evidence with regard to the other Page 10 of 14 HC-NIC Page 10 of 14 Created On Thu Nov 05 03:02:10 IST 2015 R/CR.A/1834/2005 JUDGMENT address. Assuming that he has another address that does not make any change. Closure notice has been sent by RPAD of the Respondent No.1-Original Accused. It is required to be mentioned that he himself had given an application earlier for making a reference to the handwriting expert and thereafter it has not been pressed. Therefore when the notice has been served, he has not even replied controverting any averments in the notice. Therefore, the presumption as provided under the law could be raised that the cheque was in discharge of the debt or the liability and reasons recorded for acquittal solely relying on the observations in the earlier judgment of the High Court in case of Urban Co-operative Credit Society v. State of Gujarat (supra) is throughly misconceived and misdirected.
12. The submissions made by learned Advocate Shri Kunal S. Shah for Respondent No.1-Original Accused that while dealing with the acquittal appeals the Court may consider the presumption of innocence is also misconceived. It is well settled that there is no fetters on the powers of the appellate court to scrutinize the evidence. The Hon'ble Apex Court in a judgment reported in (2007) 4 SCC 415 in case of Chandrappa & Ors. v. State of Karnataka has laid down the broad guidelines with regard to the scope of Section 378 of Cr.PC. Further, the Hon'ble Apex Court in Page 11 of 14 HC-NIC Page 11 of 14 Created On Thu Nov 05 03:02:10 IST 2015 R/CR.A/1834/2005 JUDGMENT a judgment reported in (2015) 7 SCC 681 in case of State of Madhya Pradesh v. Madanlal has made the observation that the Appellate Court has duty to make complete and comprehensive appreciation of all vital features of the case and scrutinizing the evidence brought on record with care and caution. Further, it has been observed in a judgment reported in AIR 2008 SC 2573 in case of Syed Peda Aowalia v. Public Prosecutor, High Court of Andra Pradesh, Hyderabad expressing the word of caution that merely because the other view is possible it may not be a ground to disturb the findings of acquittal. However, if the court below is totally misdirected in its approach while appreciating the evidence or applying the law or interpreting the law which may result in miscarriage of justice, the appellate court would be justified in disturbing the findings recording the acquittal. Therefore, the present appeal deserves to be allowed. The impugned judgment and order recording acquittal of the Respondent No.1/Original Accused is hereby quashed and set aside. The Respondent No.1 / Original Accused is held to be guilty for the offence under Section 138 of the Negotiable Instruments Act.
(RAJESH H.SHUKLA, J.)
Further Order
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13. After the judgment was pronounced, learned advocate, Shri Shah has been heard and he has kept his client (the respondent-accused) present in the Court. He has also deposited an amount of Rs.45,000/- with the Registry of this High Court, for which, he has produced the receipt issued by the Nazir, High Court of Gujarat.
13. Upon deposit of the amount, he has requested that the order for sentence or fine may not be passed. He has relied upon the judgment of the Hon'ble Apex Court in case of Govardhan Das Partani & Anr. Vs. State of A.P. & Anr., reported in (2003) 10 SCC 244.
14. Therefore having heard learned advocate, Shri Amar Mithani for the appellant, learned advocate, Shri Shah for the respondent- accused and learned APP Shri Jani for the State, the interest of justice would be served if the respondent-accused is ordered to pay fine of Rs.1000/-, which shall be deposited before the trial court within a period of four weeks.
15. Out of the amount deposited as stated above, an amount of Rs.35,000/- is ordered to be disbursed to the appellant towards the dues by Account Payee Cheque in the name of the appellant and remaining amount of Rs.10,000/- is ordered to be refunded back to the respondent-accused on usual terms after due verification.
16. Record & Proceedings to be sent back to the trial court forthwith.
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