Gujarat High Court
Govindbhai Chothmalji Kalal vs State Of Gujarat on 26 February, 2019
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.MA/3634/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 3634 of 2019
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GOVINDBHAI CHOTHMALJI KALAL
Versus
STATE OF GUJARAT
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Appearance:
MR JIGAR D DAVE(6528) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MONALI BHATT, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 26/02/2019
ORAL ORDER
1. This is an application seeking Leave to Appeal against the judgment of acquittal dated 17.1.2019 recorded by learned Chief Metropolitan Magistrate, Negotiable Instrument Act Court No.32, Ahmedabad in Criminal Case No.3201835 of 2011 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
2. This court has heard learned advocate Shri Jigar D. Dave for the applicant and perused the impugned judgment. Upon going through the impugned judgment, the complainant himself has admitted that he has indulged into the ready-made job work and his turnover is between Rs.1 lakh to Rs.1.5 lakhs. He was not maintaining any account and he clearly and Page 1 of 3 R/CR.MA/3634/2019 ORDER categorically admits that he had no idea as to when Rs.3 lakhs was lent to the accused and same fact he also did not mention in the impugned notice, though he admitted that the accused executed promissory-note, but such promissory-note was not produced before the learned Trial Court.
3. Learned advocate Mr. Jigar D.Dave for the applicant has pointed out that since the accused has not denied issuance of cheque, consequently, therefore, in view of certain judgments by Hon'ble Supreme Court of India in the case of T.P. Murugan (Dead) Vs. Bojan reported in (2018)8 SCC 469 and in the case of Kishan Rao Vs. Shankargouda reported in AIR 2018 SC 3173, the mere admission on the part of the accused that he issued the cheque, is enough to held him guilty. Section 138 of the Act itself requires that in order to held guilty the drawer of cheque, it should be issued for the discharge, in whole or part of any debt or other liability, and further, in the explanation to the said section, the 'debt or other liability' it is further made clear that it should be legally enforceable debt or liability. In absence of legally enforceable debt, no criminal liability could be fastened upon the accused as such. Since the complainant failed to Page 2 of 3 R/CR.MA/3634/2019 ORDER prove that the cheque in question came to be issued for discharge of legally enforceable debt, no criminal liability could be fastened upon him.
4. In view of the aforesaid nature of evidence, the learned Trial Court has recorded clear finding that the complainant failed to prove his soundness to lend huge amount of Rs.3 lakhs to the accused in cash. In that view of the matter, learned Trial Court recorded that the complainant failed to prove that the cheque was issued towards due discharge of legally enforceable debt.
5. In view of the aforesaid nature of evidence, the learned Trial Court has rightly acquitted the accused. Hence, no case is made out for grant of Leave to Appeal. Hence, the Leave to Appeal is refused. Consequently, therefore, the Criminal Appeal also stands dismissed.
(R.P.DHOLARIA, J) BINOY B PILLAI Page 3 of 3