Point of Law: Acquittal - In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below

JUDGMENT :

1. The present Criminal Appeal is filed by the Appellant-Original Complainant under Section 378 of the Criminal Procedure Code (for brevity ‘the Code’) being aggrieved and dissatisfied with the judgment and order passed by the learned Metropolitan Magistrate, Court No. 12, Ahmedabad (for brevity ‘the learned Trial Court’) on 30.05.2009 in Criminal Case No. 777 of 2001, wherein the Respondents-Original Accused have been acquitted under Section 255(1) of the Code for the offences punishable under Section 138 of the Negotiable Instruments Act, 1861 (for short ‘the NI Act’).

2. Heard learned Advocate Mr. R. K. Savjani with Ms. Prachi Thakker for learned Advocate Mr. Ashwin Panchal for the Appellant (for brevity ‘the Complainant’) and learned Advocate Mr. Nilesh A. Pandya for learned Advocate Mr. Haresh H. Patel for the private Respondent Nos. 2 to 7 (for brevity ‘the Accused’) and learned APP Ms. Jirga Jhaveri, for the Respondent No. 1 State of Gujarat.

Facts of the Case:

3. As per Complaint, the facts of the prosecution case are that at the relevant time, the Complainant Jayesh Thakker was the Manager of original Complainant Partnership firm (D. M. Finance). The Respondent No. 3 to 7 were the Directors of the Respondent no 2 Company Giriraj Proteins Pvt. Ltd. running the business of Protein. They entered into transaction with the Complainant for purchase of Castor Seeds. The Accused had purchased the stock of Castor Seeds and as per the Statement of Account, the Accused paid only Rs. 28,66,677/- and an amount of Rs.41,89,364/- was outstanding. That, the Accused have issued three cheques bearing No.585977 for Rs.3,00,000/-, Cheque No.585979 for Rs.2,00,000/- and Cheque No.585980 for Rs.2,00,000/- drawn on Laxmi Vilas Bank Ltd., Gondal Road, Rajkot towards the part payment. The Complainant has presented these three cheques for realization in the Social co-operative Bank Ltd, Ahmedabad, they were dishonored by the bank with endorsement ‘insufficient funds’. The Complainant issued demand notice dated 10/07/2001 to the Accused. The Accused gave vague reply of the notice and did not pay the amount of unpaid cheques. The Complaint under Section 138 of the NI Act was filed in the Court of the learned trial Court No.12, Ahmedabad against the Accused. The same was registered as Criminal Case No.777 of 2001.

3.1 Before the learned Trial Court, the Accused have denied having committed the offence. Learned Trial Court has acquitted the Accused vide impugned order dated 30/05/2009.

3.2 The Appellant Complainant has filed the present appeal before this Court which was registered as Criminal Appeal No. 2602 of 2009. This Court, after hearing the learned advocates for the parties, and placing reliance on judgment of case of Nitinbhai Saventilal Shah Vs. Manubhai Nanjibhai Panchal reported in AIR 2011 SC 3076 the order of acquittal passed by the learned Trial Court in Criminal Case No. 777 of 2001 was set aside and case was remanded on 22/02/2012 to the learned Trial Court for denovo trial (retrial) in accordance with law.

3.3 Being aggrieved by the remand order passed by this Court, the Accused had preferred S.L.P. (Cri.) No. 3332 of 2012 (Criminal Appeal No. 2222/ 2014) before the Hon’ble Supreme Court of India. The Hon’ble Supreme Court has after considering the submissions for both the parties, allowed the appeals on 16/10/2014 and remanded the matter back to the High Court in following terms :-

Para 59. Thus, in summation, we are of the considered opinion that the exercise of remitting the matter to Trial Court for de novo trial should be done only when the appellate Court is satisfied after thorough scrutiny of records and then recording reason for the same that the trial is not summons trial but summary trial. The non-exhaustive list which may indicate the difference between both modes of trial is framing of charges, recording of sta