Dipesh Thakorbhai Tandel vs Hiren Kishorbhai Bhatt on 10 January, 2020

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Gujarat High Court

Dipesh Thakorbhai Tandel vs Hiren Kishorbhai Bhatt on 10 January, 2020

Bench: Umesh A. Trivedi

        R/CR.MA/18682/2019                                  ORDER




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/CRIMINAL MISC.APPLICATION NO. 18682 of 2019

===============================================
                        DIPESH THAKORBHAI TANDEL
                                  Versus
                         HIREN KISHORBHAI BHATT
===============================================
Appearance:
MR HIMANSHU C DESAI(6832) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS MOXA THAKKER ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 2
===============================================

 CORAM: HONOURABLE MR.JUSTICE UMESH A. TRIVEDI

                             Date : 10/01/2020

                                ORAL ORDER

1. Heard Mr.Himanshu Desai, learned advocate for the applicant.

2. This application is filed seeking Special Leave to Appeal under sub-section (4) of Section 378 of Code of Criminal Procedure, 1973, challenging the order of acquittal recorded by learned 6th Additional Chief Judicial Magistrate, Surat dated 30.7.2019 passed in Criminal Case No.26435 of 2018 whereby respondent NO.1 herein came to be acquitted for an offence under Section 138 of the Negotiable Instruments Act.

3. The main grounds recorded by the learned Judge after referring two of the decisions of High Court of Karnataka as also Delhi High Court, in paragraph 17, whereby it has been held that the complainant has failed to prove the debt to be legally enforceable towards which the alleged cheque is issued.

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         R/CR.MA/18682/2019                                        ORDER




4.    Considering        the   complaint    and   the   deposition        of     the

complainant, it appears that for providing Government job fradulently to different persons who are not eligible, the complainant has acted as an agent, collected huge amount and supplied it to the accused as claimed, for returning the same cheque is said to be issued.

5. As recorded in the judgment, nearly 70 persons approached the complainant for the Government job which was promised by complainant and stood as a guarantor to get the same despite they are not eligible and provided some money to the accused through him, that is the case pleaded by the complainant. However complainant has failed to prove how much amount collected from whom and what is paid to the accused which is claimed to be returned through cheque. The whole claim appears to be based on unlawful consideration for unlawful object. Therefore, payment made to the accused is believed to be true then also it can not be said that it is legally enforceable. It cannot be termed as debt apart from legally enforceable debt.

6. However, the impugned cheque of Rs.2,32,19,200/- is claimed to have been issued refunding amount collected illegally by the complainant and provided to be accused.

7. Even if it is presumed that the cheque is issued by the accused, it was not of the transaction falling within the definition of legally enforceable debt, which complainant has miserably failed to prove so and, therefore, the trial Court has after assigning good reasons, acquitted the respondent-accused.

8. I am in full agreement with the reasons assigned by the learned Judge and, therefore, no case is made out to grant Special Leave to Appeal under sub-section (4) of Section 378 of the Code.

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R/CR.MA/18682/2019 ORDER

9. Accordingly, this application is rejected and is disposed of.

(UMESH A. TRIVEDI, J) NAIR SMITA V. Page 3 of 3 Downloaded on : Sun Feb 16 19:33:18 IST 2020

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