Gujarat High Court
Sangar Karu Bhimji vs State Of Gujarat & on 12 March, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.MA/19963/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 19963 of
2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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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SANGAR KARU BHIMJI....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
HCLS COMMITTEE, ADVOCATE for the Applicant(s) No. 1
MR. MANOJ T DANAK, ADVOCATE for the Applicant(s) No. 1
MR VINOD M GAMARA, ADVOCATE for the Respondent(s) No. 2
MS. HANSA PUNANI, APP, for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 12/03/2015
ORAL JUDGMENT
[1] The present leave to appeal has been filed by the applicant-original complainant, Sangar Karu Bhimaji against the Judgment and order dated 26.09.2014 Page 1 of 10 R/CR.MA/19963/2014 JUDGMENT rendered by the learned Judicial Magistrate First Class, Mandvi, Kutch, in Criminal Case No.370 of 2010. The said case was registered against the respondent-accused No.2 for the offence under Section-138 of the Negotiable Instrument Act, 1881.
[2] According to the prosecution case, Before the Court of learned Judicial Magistrate First Class, Mandvi, Kutch, present applicant-complainant filed complaint under Section-138 of the Negotiable Instrument Act, 1881. Respondent No.2-accused issued cheque bearing No.43944874 dated 27.05.2010 drawn on Dena Bank- Bidda (Kutch) for an amount of Rs.41,200/-in favour of present applicant-complainant towards part consideration and towards personal use of the complainant. So, the present applicant deposited the said cheque with his bank, but the said cheque was dishonored by bank. The applicant was intimated by the said bank with returned memo. Therefore, the present applicant gave statutory notice on 22.06.2010 under Section-138 of the N.I. Act by registered post and called upon respondent No.2-accused to make payment of cheque amount within 15 days from the receipt of the notice. The said notice was served upon respondent No.2-accused on 25.06.2010. However, respondent No.2-accused did not reply to the said demand notice. In result of that conduct of respondent-accused, complaint was filed by the complaint before the learned Judicial Magistrate First Class, Mandvi, Kutch and the said case was registered as Criminal Case No.370 of 2010.
Page 2 of 10R/CR.MA/19963/2014 JUDGMENT Then, process was issued and present applicant also attached certain documents with the complaint.
[3] On the basis of above allegations, charge was framed and read-over and explained to the respondent No.2-accused for the offence punishable under Section- 138 of the Negotiable Instrument Act, 1881. The accused pleaded not guilty to the charge and claimed to be tried.
[4] In support of the prosecution case, prosecution has examined four oral evidences:-
Sr Exh Name of Witness No . 1 23 Sangar Karu Bhima 2 43 Shashikant Liladhar Ganatra [5] In support of the prosecution case, the
prosecution has produced several documentary evidences like original memorandum at Exh.25 to 27, photocopy of notice given to accused at Exh.28, receipt of post at Exh. 30, communication made to Postal Department at Exh.31 to 33 and medical certificate at Exh.48.
[6] Thereafter, after filing closing pursis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, he denied the case of the prosecution and submitted that a false case is filed against him.
[7] Then, arguments of both the parties were heard.
Page 3 of 10R/CR.MA/19963/2014 JUDGMENT Learned trial Judge observed that respondent No.2- accused is blind person and there was no transaction took place between both the parties and false complaint has been filed by the complainant against accused. In result of this, learned trial Judge passed the acquittal order in favour of the respondent No.2-accused. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 26.09.2014 rendered by the learned Judicial Magistrate First Class, Mandvi, Kutch, in Criminal Case No.370 of 2010, the applicant-complainant has preferred the present application for leave to appeal before this Court.
[8] Heard Mr. Manoj T. Danak, learned advocate for the applicant-complainant appointed through legal aid committee. Ms. Hansa Punani, learned Additional Public Prosecutor for the respondent No.1-State of Gujarat and Mr.Vinod Garara, learned advocate for respondent No.2- accused,appointed through legal aid committee.
[9] Learned advocate Mr. Manoj T.Danak read the charge and judgment and order of learned trial Judge and fairly admitted that he has no reply against the observation made by learned trial Judge at para-11. He submitted that as per the instructions given by the legal aid committee, he has filed this application for leave to appeal. He read the contents of the documents produced on record and submitted that learned trial Court observed the said observation only on the ground of presumption and wrongly acquitted respondent-accused No.2 from the said Page 4 of 10 R/CR.MA/19963/2014 JUDGMENT alleged offence. Lastly, he prayed to allow this application.
[10] Ms.Hansa Punani, learned Additional Public Prosecutor for respondent No.1-State read para-11 of the judgment and vehemently argued that it is a duty of the present applicant-complainant to convince the Court that how the applicant-complainant can come out from the observations of the learned trial Judge.
[11] Mr. Vinod M. Gamara, learned advocate for the respondent No.2-accused submitted that he is a blind person and he has no object for his bread and butter. He then submitted that he was wrongly cited as accused before the learned Judicial Magistrate First Class, Mandvi, Kutch. Even today also, through this bogus complaint and application, respondent No.-2-accused is invited by the complainant before this Court. He prayed that the present application deserves to be dismissed and some compensatory amount is required to be awarded to this disabled blind respondent No.2-accused.
[12] I have gone through the impugned judgment and order passed by the learned trial Judge. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the respondent No.2- accused. I have also considered the submissions made by learned advocates for the parties.
[13] I have perused the oral as well as documentary evidence produced on record. It is true that prosecution has examined two witnesses one complainant Sangar Karu Page 5 of 10 R/CR.MA/19963/2014 JUDGMENT Bhimaji at Exh.23 and second Shashikant Liladhar Ganatra at Exh.4. Looking to the evidence produced on record, it is required to be noted that in cross-examination of the complainant it is disclosed by him that his father's name is Ibrahim Vela Sangar and in complaint, name of the present applicant-complainant is shown as Sangar Karu Bhimaji. I have also perused the cross-examination of the present complainant, it is disclosed by him that on account of good terms and by stating of being in financial crisis, the accused borrowed Rs. 41,200/- from the complainant. As the accused stated to the complainant that his newspaper agency will be snatched away, the complainant took loan of Rs. 40,000/- on the fixed deposit of his wife and by adding Rs. 1200/- to it, he lent him Rs. 41,200/-. In lieu of the same, the accused gave cheque of Rs. 41,200/- of dated 27/5/2010. The complainant stated that he gave this amount to the accused by taking loan on fixed deposit of his wife. But, the complainant did not prove the same by adducing documentary evidence during production of evidence that Rs. 40,000/- paid from the loan of his wife. If the complainant paid this amount from the loan of his wife, its evidence can easily be availed, but, no document regarding loan of his wife has been produced in this case. Therefore, it is not proved beyond reasonable doubt that the complainant had legal dues. The complainant admitted in his cross examination that the accused did not have the business of newspaper agency. The complainant stated such in his complaint and Page 6 of 10 R/CR.MA/19963/2014 JUDGMENT examination in chief that the accused was doing business of newspaper agency. But, he admitted in cross examination that the accused was not doing business of newspaper agency. Therefore, the fact has not been corroborated that as the accused required money for his newspaper agency, he asked for a loan. The accused accepted in his cross examination that he did not know handwriting except his signature. Under these circumstances, if the accused had given the cheque after filling up complete details, the complainant could have stated that the accused filled up the same. But, in this case, it is proved that the complainant filled up all the details of the cheque by himself or through any other person apart from the signature. In this case, another witness deposed at Exhibit-32 wherein Deputy Manager Shri Maheshvari, who issued the certificate that the article was delivered to the addressee on 25.06.2010. Therefore, it can be believed that notice has been served to the accused. Further, the judgment of Hon'ble High Court, Andhrapradesh in the case of G.S.Talvadi Rok v/s. Shri Laxmi Finance (A.P.H.) reported in 1998-8-12, judgment of Bombay High Court, Loss(BOM)-2002-1-101 in case of Prashant Prabhat Karo v/s. Jite S.K.Sardar and judgment of High Court of Gujarat in case of Monthri Industries v/s. State of Gujarat are taken into perusal. The judgments produced by prosecution are helpful in connection with the fact that the notice is said to have been served to the respondent-accused and it can be believed that legal Page 7 of 10 R/CR.MA/19963/2014 JUDGMENT notice has been served to the accused, is proved. Further, on making further cross examination by learned advocate of the complainant, the complainant accepted that the name of his father is Ibrahim Vela Sangar whereas the name of the accused is Sangar Karu Bhimaji. It creates doubt to complaint of the complainant as to what is the name of the complainant and whether complainant is there or any dummy person is there. The complainant did not make any clarification in this regard in his cross examination. Thus, firstly, the complainant should prove legal due against the accused. In this case, the complainant stated fact of lending money to the accused after taking loan on the fixed deposit of his wife. But, the complainant did not produce any document of loan. Therefore, due to lack of documentary evidence, this fact can not be believed. Further, the complainant did not produce any evidence of his wife. Thus, due to lack of documentary evidence, it can not be believed that the complainant has legal due against the accused. The complainant stated in his cross examination that the accused has no business of newspaper agency. Therefore, it is not proved that the accused had urgent monetary need for his business of agency. Further, taking into consideration hundred percent disable eyes certificate issued by G.K.General Hospital to the accused on 18.03.2006 at Mark-48(1), the accused is blind since 2006 whereas the alleged cheque is of the year 2010. Therefore, as the complainant admitted earlier that the Page 8 of 10 R/CR.MA/19963/2014 JUDGMENT accused was his close relative. Further, the complainant admitted in his cross examination that he had good terms with the accused and the accused acted as per his say. Therefore, it is proved and established that by taking benefit of his blindness, the complainant got signature of accused in a cheque and the false case has been filed against the respondent-accused. The complainant accepted the fact in his cross examination that he did not know as to whose handwriting was there except his signature. Therefore, it is proved that the complainant himself or through another person, filled up the details in the cheque.
[13.1] As far as the provision of Section-138 of the N.I. Act is concerned, it is the duty of the complainant to prove legal dues. In the present case, as per the provision of Sections-138 and 139 of the Negotiable Instrument Act, the complainant could not prove legal dues and its case beyond reasonable doubt. Hence, in view of the above observation, no case is made out for the complainant to file this application. Hence, the present application is required to be dismissed. In view of the above observations made by the learned Judge, I am in complete agreement that the learned Judge has rightly acquitted the respondent No.2-accused. There in no substance in the appeal and the arguments made by the learned advocate for the applicant-complainant. Though learned advocate for the applicant tried to establish his case, but the Court has not found any sufficient evidence Page 9 of 10 R/CR.MA/19963/2014 JUDGMENT to consider and entertain this application for leave to appeal.
[14] In view of the above, present application for leave to appeal is hereby dismissed. The impugned judgment and order dated 26.09.2014 rendered by the learned Judicial Magistrate First Class, Mandvi, Kutch, in Criminal Case No.370 of 2010, acquitting the respondents-accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Bail bond shall stand cancelled.
(Z.K.SAIYED, J.) siddharth Page 10 of 10