Gujarat High Court
Vijayben Vrajlal Kaneria vs State Of Gujarat & ... on 10 January, 2017
Author: A.G.Uraizee
Bench: A.G.Uraizee
R/CR.A/334/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 334 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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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VIJAYBEN VRAJLAL KANERIA....Appellant(s)
Versus
STATE OF GUJARAT & 1....Opponent(s)/Respondent(s)
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Appearance:
MR S.B. TOLIA with MR HARSHIT S TOLIA for the Appellant
MR K.L. PANDYA, ADDL. PUBLIC PROSECUTOR for the State
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 10/01/2017
ORAL JUDGMENT
1 The appeal under section 378(4) of the Criminal Procedure Code, 1973 ('the Code' for short) is preferred by the appellant - original complainant against the judgment and order of acquittal dated 21.04.2006 passed by the learned 11th Additional Senior Civil Page 1 of 8 HC-NIC Page 1 of 8 Created On Sat Aug 12 06:10:50 IST 2017 R/CR.A/334/2007 JUDGMENT Judge & Judicial Magistrate First Class, Rajkot in Criminal Case No.8882 of 2004 whereby respondent no.2 is acquitted of the offence punishable under section 138 of the Negotiable Instruments Act, 1881 ('the NI Act' for short).
2. The short facts giving rise to the present appeal are that the appellant gave hand loan of Rs.1,50,000/- to respondent no.2 for a period of six months on account of the good relations between them. The appellant demanded the said amount from respondent no.2 after expiry of six months, but respondent no.2 avoided the payment on one pretext or other and ultimately in June 2004 a cheque bearing no.288656 dated 25th July 2004 drawn on Cooperative Bank of Rajkot Limited was given to the appellant. The cheque was presented in the bank for clearance and it came back with an endorsement "Account Closed". Thereupon, the appellant served notice dated 26th August 2004 on the respondent no.2 as required under section 138(b) of the NI Act and demanded the payment of the cheque amount. Upon receipt of the notice, the respondent did not make any payment within 15 days, but gave evasive replies. The appellant, therefore, was constrained to file the complaint for the offence punishable under section 138 of the NI Act in the court of the learned Judicial Magistrate First Class, Rajkot , which came to be registered as Criminal Case No.8882 of 2004. Upon conclusion of the trial of the complaint, the learned trial Judge was pleased to acquit the respondent no.2 by the impugned judgment and order of acquittal essentially on the ground that there is variation in the cheque number mentioned in the notice under section 138B and complaint on the one hand and Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Aug 12 06:10:50 IST 2017 R/CR.A/334/2007 JUDGMENT cheque written memo exhibit 10 on the other. The appellant- original complainant being unhappy with the impugned judgment and order of acquittal has preferred the present appeal.
3. I have heard Mr S.B. Tolia with Mr Harshit Tolia, learned advocate for the appellant and MR K.L. Pandya, learned Additional Public Prosecutor for respondent no.1. There is no appearance on behalf of respondent no.2 - original accused. I have also perused the record and proceedings of Criminal Case No.8882 of 2004.
4. Mr Tolia, learned advocate for the appellant has vehemently urged that respondent no.2 had sought adjournment in the trial court vide application exhibits 24 and 25 on the ground that the parties were in talks for settlement. Respondent no.2 in fact, as would appear from application exhibit 25, he paid Rs.5,000/- on 11.10.2005 and would make further payment of Rs.5,000/- to the appellant towards settlement and therefore, according to Mr Tolia, respondent no.2 has admitted the cheque. He further submits that the explanation for leaving behind the cheque on receiving the news of some accident is too vague to be accepted. He, therefore, submits that the learned trial judge has erred in acquitting the respondent no.2 solely on the ground of variation in the cheque number.
5. Mr K.L. Pandya, learned APP submits that appropriate order may be passed on perusal of the record of the trial court.
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R/CR.A/334/2007 JUDGMENT
6. A perusal of the impugned judgment and order of acquittal reveals that the learned trial judge has essentially acquitted respondent no.2 on the ground that cheque number mentioend in the notice under section 138(b) of the NI Act and the complaint and the cheque number which is mentioned on the cheque as well as exhibit 10, cheque return memo issued by the bank are different and therefore respondent no.2 cannot be convicted for the offence punishable under section 138 of the Negotiable Instruments Act.
7. To appreciate the reasons adopted by the learned trial judge to acquit respondent no.2, it would be apposite to consider the provisions of section 138 of the NI Act, which reads as under:
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both :
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is Page 4 of 8 HC-NIC Page 4 of 8 Created On Sat Aug 12 06:10:50 IST 2017 R/CR.A/334/2007 JUDGMENT earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, b [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
Explanation.-For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
8. The bare perusal of the aforesaid provision of section 138 of the NI Act makes it vividly clear that the basis of the complaint under section 138 is a notice under section 138(b) which the holder of a cheque is required to serve upon the drawer of the cheque. It further appears very clearly that the notice under section 138(b) has to be in respect of a particular cheque. Undisputedly, in the case on hand the notice was given by the appellant to respondent no.2 in respect of cheque no.288656 whereas the cheque as well as cheque return memo in the trial court are in respect of cheque no.88656. Thus, at the threshold, the requirement of section 138(b) of NIC are not complied with. In my opinion, the subsequent amendment which the appellant has sought vide exhibit 7 application cannot come to the rescue of the appellant. Here also, it is worthwhile to note that the appellant gave his affidavit in lieu of examination-in-chief on 15th June 2005 and thereafter his cross-examination was over on 1st April 2006 whereas the rectification/amendment application came to be submitted in the trial court on 7th April 2006. It is thus Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Aug 12 06:10:50 IST 2017 R/CR.A/334/2007 JUDGMENT manifestly clear from the evidence and the rectification application that the appellant has served the notice on the respondent no.2 under section 138(b) in respect of cheque no.288656 whereas the cheque and the cheque return memo which are produced on record of Criminal Case vide exhibit 9 and 10 respectively are in respect of cheque memo no.88656. Therefore, it cannot be said that the reasons recorded by the trial court for convicting the respondent no.2 are in any way perverse or illegal.
9. So far as submission as regards the so called admission of the respondent no.2 vide exhibit 24 and 25 adjournment applications are concerned, it can only be said that respondent no.2 had expressed his willingness to settle the dispute for a specified amount. In these two applications respondent no.2 has nowhere admitted his liability under cheque no.288656 and these adjournment applications coupled with payment of Rs.5,000 to respondent no.1 for settlement of the dispute cannot partake the character of admission on the part of respondent no.2.
10. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat Aug 12 06:10:50 IST 2017 R/CR.A/334/2007 JUDGMENT acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal in Sambasivan v. State of Kerala, (1998) 5 SCC 412 has held as under:
"7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal."
11 The above proposition of law expounded by the Honourable Supreme Court makes it manifestly clear that the appellate power in acquittal appears are to be exercised with caution and the acquittal recorded by the trial court cannot be interfered with casually and in a cavalier manner. If a view adopted by the trial court is plausible and reasonable, the appellate court cannot substitute the findings of the trial court by another plausible view, if there is any.
12 Here, in the present case, I am of the opinion that there Page 7 of 8 HC-NIC Page 7 of 8 Created On Sat Aug 12 06:10:50 IST 2017 R/CR.A/334/2007 JUDGMENT is no other plausible or reasonable view except the one adopted by the learned trial Magistrate. I am, therefore, of the opinion that the appeal lacks merits and the impugned judgment and order of acquittal dated 21 st April 2006 recorded by the learned 11th Additional Senior Civil Judge & Judicial Magistrate First Class, Rajkot in Criminal Case No.8882 of 2004 does not warrant any interference.
13. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith.
(A.G.URAIZEE, J.) mohd Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Aug 12 06:10:50 IST 2017