Mineshbhai Lalitbhai K. Shah, Owner Of ... vs State Of Gujarat on 26 August, 2019

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Gujarat High Court

Mineshbhai Lalitbhai K. Shah, Owner Of ... vs State Of Gujarat on 26 August, 2019

Bench: B.N. Karia

         R/CR.RA/1039/2019                                        ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL REVISION APPLICATION NO. 1039 of 2019
                             With
    CRIMINAL MISC.APPLICATION (REGULAR BAIL) NO. 1 of 2019
      In R/CRIMINAL REVISION APPLICATION NO. 1039 of 2019
==========================================================
   MINESHBHAI LALITBHAI K. SHAH, OWNER OF YASH JEWELERS
                            Versus
                     STATE OF GUJARAT
==========================================================
Appearance:
MR. RAHUL R DHOLAKIA(6765) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS. MONALI H. BHATT, APP for the Respondent(s) No. 1
==========================================================

 CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

                                 Date : 26/08/2019

                                  ORAL ORDER

Order in Criminal Revision Application:

Present applicant has filed present Criminal Revision Application challenging the judgment and order dated 14th August 2019 passed by the learned Additional Sessions Judge, City Sessions Court, Ahmedabad in Criminal Appeal No. 528 of 2018 as well as judgment and order dated 18th August 2018 passed by the learned Additional Chief Metropolitan Magistrate, Court No. 35, Ahmedabad in Criminal Case No. 954 of 2016.

Heard learned advocate for the applicant and learned APP for the respondent-State.

It was submitted by learned advocate for the applicant that the impugned judgment and order dated 14th August 2019 Page 1 of 4 Downloaded on : Tue Aug 27 21:45:27 IST 2019 R/CR.RA/1039/2019 ORDER passed by the learned Additional Sessions Judge, Ahmedabad in Criminal Appeal No. 528 of 2018 is clearly erroneous and against the provisions of Section 138 of the Negotiable Instruments Act( In short "the Act"). It was further submitted that complainant has failed to prove a legally enforceable debt which is sine qua non for an offence punishable under Section 138 of the Act. That, cheque in question was forcibly taken by the complainant after filing a false and fabricated complaint before the Police Authorities. It was further submitted that the complainant preferred through its authorized representative is also bad in law as the authority letter below Exh. 13 as well as resolution below Exh. 18 were not duly proved and does not inspire confidence. It was further submitted that the audit reports produced vide Exh. 16 and 17 are also not duly proved by the complainant and no reliance can be placed. Learned advocate for the applicant further submitted that the applicant has successfully rebutted the presumption and in view of the same, learned Court below ought not to have convicted the applicant herein. That, applicant has deposited Rs. 73,000/- before the trial Court on 19th September 2018.

Considering the submissions made by learned advocate for the applicant, issue requires consideration.

Hence, rule returnable on 23rd September 2019. Learned APP waives service of notice of rule for and on behalf of the respondent no.1-State.

Order in Criminal Misc. Application:

Page 2 of 4 Downloaded on : Tue Aug 27 21:45:27 IST 2019

R/CR.RA/1039/2019 ORDER Rule. Learned APP waives service of notice of rule for and on behalf of the respondent no.1-State.

Present applicant has filed present Criminal Misc. Application for suspension of sentence in connection with the judgment and order dated 14th August 2019 passed by the learned Additional Sessions Judge, City Sessions Court, Ahmedabad in Criminal Appeal No. 528 of 2018 and bail pending the present Criminal Revision Application.

Heard learned advocate for the applicant and learned APP for the respondent-State.

It was submitted by learned advocate for the applicant that the impugned judgment and order dated 14th August 2019 passed by the learned Additional Sessions Judge, Ahmedabad in Criminal Appeal No. 528 of 2018 is clearly erroneous and against the provisions of Section 138 of the Negotiable Instruments Act( In short "the Act"). It was further submitted that complainant has failed to prove a legally enforceable debt which is sine qua non for an offence punishable under Section 138 of the Act. That, cheque in question was forcibly taken by the complainant after filing a false and fabricated complaint before the Police Authorities. It was further submitted that the complainant preferred through its authorized representative is also bad in law as the authority letter below Exh. 13 as well as resolution below Exh. 18 were not duly proved and does not inspire confidence. It was further submitted that the audit reports produced vide Exh. 16 and 17 are also not duly proved by the complainant and no reliance can be placed. Learned Page 3 of 4 Downloaded on : Tue Aug 27 21:45:27 IST 2019 R/CR.RA/1039/2019 ORDER advocate for the applicant further submitted that the applicant has successfully rebutted the presumption and in view of the same, learned Court below ought not to have convicted the applicant herein.

Learned APP for the respondent-State strongly objected the submissions made by learned advocate for the applicant and stated that the order passed by the trial Court is just and proper and learned Judge has properly appreciated the evidence on record and has convicted the accused so no interference is called for so he has urged to dismiss the present application.

That, applicant has deposited Rs. 73,000/- before the trial Court on 19th September 2018. Thus, the applicant shall deposit remaining cheque amount after deducting Rs. 73,000/- before the trial Court within a period of two weeks from the date of receipt of this order.

Looking to the facts of the case, I am of the opinion that this is a fit case to grant bail to the applicant. Hence, the applicant is ordered to be released on bail, pending hearing and disposal of the Revision Application, on his furnishing a personal bond of Rs.10,000/-and a surety of the like amount; on usual terms and conditions.

Present application stands allowed and stands accordingly disposed of.

Rule is made absolute to the aforestated extent. Direct service is permitted.

(B.N. KARIA, J) K. S. DARJI Page 4 of 4 Downloaded on : Tue Aug 27 21:45:27 IST 2019

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