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2020 Supreme(Guj) 635
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. KARIA, J.
Patel Jashiben Wd/o. Ramabhai Dahyabhai - Applicant
Versus
State of Gujarat - Respondent
R/Criminal Revision Application No. 926 of 2019 With Criminal Misc. Application (Cancellation of Bail) No. 1 of 2019
Decided On : 03-09-2020
For the Applicant : Mr. Manoj Shrimali.
For the Respondent: Mr. Hardik P. Barot, Ms. Krina Calla, A.P.P.
IMPORTANT POINT
It has to be presumed that a cheque was issued in discharge of a debt or other liability but the presumption could be rebutted by adducing evidence - The burden of proof was however on the person who wanted to rebut the presumption - This Court held “however, this presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a post dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act.
Headnote:
Negotiable Instruments Act, 1881 – Sections 138, 139 - Dishonored of Cheque - Agreement to sell - Disputed land - Challenged the impugned judgment and order passed by Learned 2nd Additional District Judge - From evidence of the witness examined by the respondent-accused , case of the prosecution is supported that money transaction was carried out between the parties. An agreement to sell of the land in question was executed before the Notary on 5th December 2012 and it appears that photographs of the parties as well as their signatures are never disputed except in the cross examination of the complainant.
Fact of the Case
Applicant is original accused and respondent No.2 is the original complainant in the aforesaid case - Applicant is old aged widow lady and is suffering from B.P. and other diseases - The husband of the applicant had expired in the year 1993. The applicant has five daughters and one son, out of them, four daughters are married and one daughter and one son are unmarried and she is having their responsibilitie - Applicant had issued a cheque to complainant for amount of Rs.9 Lacs - Complainant had submitted said cheque for encashment in his account of Bank branch, but on same day, said cheque was returned with endorsement 'Today's balance insufficient' - Therefore, complainant informed same to applicant
Finding of the Court
Learned advocate for applicant requests to continue interim relief, granted by this Court to approach Higher Forum with a view to challenge this order. undertaking was passed by applicant/accused before this Court for depositing an amount of Rs.7 Lakhs and time to time, her prayer for depositing such amount was extended by this Court, however, applicant/accused has not complied with order - Thus, there is no substance in request made by applicant - Trial Court as well as first Appellate Court have committed no error in rejecting plea raised by the respondent-accused that blank cheque was received by the complainant to obtain the loan from the bank.
Result: Application stands disposed of.
JUDGMENT :
1. By way of present application, applicant has challenged the impugned judgment and order dated 29.06.2019 passed by the Learned 2nd Additional District Judge, Kalol, Dist-Gandhinagar in Criminal Appeal No.1 of 2018 as well as judgment and order dated 19.03.2018 passed by learned Additional Chief Judicial Magistrate, Kalol, Dist-Gandhinagar in Criminal Case No.73 of 2014.
2. Brief facts of the present case are as under:
Present applicant is original accused and respondent No.2 is the original complainant in the aforesaid case. The applicant is old aged widow lady and is suffering from B.P. and other diseases. The husband of the applicant had expired in the year 1993. The applicant has five daughters and one son, out of them, four daughters are married and one daughter and one son are unmarried and she is having their responsibilities. That she is holding land bearing survey No.209 admeasuring Hec.are 1-14-32 sq. mtrs., in the sim of Mauje Ramnagar, Taluka Kalol (for short 'the disputed land') and it is running in the names of the applicant and her son Sanjay Ramabhai. Since the applicant was in need of money, they came to the complainant and talked about sale of the land qua their shares. Therefore, the complainant took advice his advocate and as per advice, it was not possible to purchase the land without block division. When this fact was brought to the notice of the applicant, she agreed that she would make block division/partition and will clear the title and thereafter, execute sale-deed of the disputed land. It was agreed to sell the disputed land to the complainant at sale consideration of Rs.13,00,000/-(Rupees thirteen lacs only and after accepting Rs.9,00,000/- from complainant, the applicant and her son executed an agreement to sell dated 5/12/2012 before the Notary.
3. That, the applicant had issued a cheque No.050245 to the complainant for the amount of Rs.9 Lacs dated 17.9.2013 of the Kalol Nagrik Sahkari Bank Ltd., Kalol. The Complainant had submitted the said cheque for encashment in his account of Bank of Baroda, Kalol branch, but on the same day, the said cheque was returned with the endorsement 'Today's balance insufficient' on 19.09.2013. Therefore, the complainant informed the same to the applicant.
4. Thereafter, the respondent No.2 complainant issued Regd. A.D. Notice dated 19.10.2013 under Section 138 of the N.I. Act to the applicant, through his advocate, which was received on 22.10.2013. Applicant, after receipt of the notice, did not reply, nor manage to pay the amount, demanded by the complainant in his notice, without prescribed time.
5. Therefore, the complainant filed Criminal Case No.73/2014 in the Court of the learned Additional Chief Judicial Magistrate, Kalol, under Section 138 of the NI Act, for his legal dues of Rs.9 Lacs against the applicant. Thereafter, the Ld. Magistrate issued summons vide order dated 04.01.2014 and the case was tried by the Ld. Magistrate.
6. That, after recording evidence and hearing the parties, Ld. Magistrate was pleased to convict the applicant and award the sentence, as aforesaid, vide judgment and order dated 19.03.2018.
7. That, being aggrieved by and dissatisfied with the judgment and order dated 19.03.2018 rendered by the Ld. Magistrate convicting the applicant, the applicant preferred Criminal Appeal No.1 of 2018 before the Ld. Additional District and Sessions Judge, Kalol on 16.04.2018.
8. That, applicant states that applicant during pendency of the appeal has made payment of amount of Rs.90,000/- before the Ld. Appellate court, vide receipt dated 25.02.2019.
9. That, after hearing both the sides, the Ld. Appellate Court has been pleased to partly allow the appeal of the applicant vide impugned order dated 29.06.2019 imposing sentence of six months and fine of Rs.9 Lacs, as aforesaid.
10. Being aggrieved by and dissatisfied with the impugned judgment and order dated 29.06.2019 partly allowing the appeal of the applicant, the applicant begs to file present r
