IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL APPEAL NO. 1488 of 2016 FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SONIA GOKANI ==========================================================

1 Whether Reporters of Local Papers may be allowed YES

1	Whether Reporters of Local Papers may be allowed to see the judgment ?	YES
2	To be referred to the Reporter or not ?	YES
3	Whether their Lordships wish to see the fair copy of the judgment ?	NO
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	NO

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DASHRATHBHAI TRIKAMBHAI PATEL Versus HITESH MAHENDRABHAI PATEL & 1 other(s)

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Appearance:

MAULIK H VAGHELA(7810) for the Appellant(s) No. 1 MR JS UNWALLA with MS NIRALI SARDA with MS TEJAL A VASHI(2704)

for the Opponent(s)/Respondent(s) No. 1 MS MAITHILI MEHTA, ADDL. PUBLIC PROSECUTOR(2) for the Opponent(s)/Respondent(s) No. 2 ==========================================================

CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI Date : 12/01/2022

ORAL JUDGMENT

1. Appellant, who is before this Court, is the original complainant of Criminal Case No.4023 of 2014 before the Court of learned Chief Judicial Magistrate in CBI Court No.2, Ahmedabad (Rural), whereby respondent no.1 was sought to be prosecuted for the offence punishable under Sections 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the N.I. Act” for short).

2. The appellant challenges the legality, validity and propriety of the judgment and order passed in the said Criminal Case dated 30.08.2016 by the trial Court, whereby the Court acquitted respondent no.1 accused for the offence punishable under Section 138 of the N.I.Act.

3. The facts in capsulized form are as follows:-

3.1. The respondent is the father-in-law of elder son of the complainant - appellant, who resided in the very village. They shared very good terms and enjoyed a cordial relationship. The respondent is having business of a contractor and was in need of money. Hence, he contacted the complainant appellant. He requested to arrange for cash of Rs. 20 lakhs and as the complainant had cordial terms, the said amount was lent. The respondent promised the same to be repaid in six months’ period. When demanded back, cheque of Rs. 20 lakhs was drawn from the State Bank of India having its branch at Prahaladnagar, Ahmedabad. This when deposited, was dishonoured and was returned to the appellant with an endorsement “fund insufficient” on 02.04.2014.

3.2. A legal notice was issued on 11.04.2014 which was within the prescribed period of limitation. Upon the service of notice, a reply through the advocate has been given by the respondent. He agreed of having accepted this amount. However, the same has not been paid. Therefore, the complaint came to be filed under Section 138 of the N.I.Act, and the same was registered as Criminal Case No.4023 of

2014.

3.3. The complainant and witnesses were examined and various documents had been exhibited. Eventually, the trial Court acquitted the respondent on the ground that the cheque was not given for a legally enforceable debt. Not only the complainant had made a transaction through the bank, he had also shown this amount in the Income Tax return and yet, the Court had not convicted the accused respondent for the non-payment. The liability also had been accepted by the respondent.

3.4. According to the appellant, liability for the remaining amount of debt would continue of the respondent and that has also not been considered by the Trial Court. The presumption, which has been made available under Section 139 of the N.I.Act, has not been rebutted by the respondent accused. Therefore also, presumption is available that there is a default in paying the bank the legally enforceable debt.

3.5. Affidavit-in-reply is filed by the respondent denying all allegations,

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