R/CR.A/1429/2006 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 1429 of 2006

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE G.R.UDHWANI

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1 Whether Reporters of Local Papers may be allowed to

see the judgment ?

No

2 To be referred to the Reporter or not ?

No

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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DINESHBHAI LAXMIDAS GANATRA

Versus

THE STATE OF GUJARAT

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Appearance:

MR RJ GOSWAMI(1102) for the PETITIONER(s) No. 1

NOTICE SERVED(4) for the RESPONDENT(s) No. 2

MR KL PANDYA ADDITIONAL PUBLIC PROSECUTOR(2) for the

RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI

Date : 06/04/2018

ORAL JUDGMENT

1.

The judgement and order dated 13.05.2005 passed by the

learned Chief Judicial Magistrate Jamnagar in Criminal Case No. 5133

of 2002 recording acquittal for the respondent no.2 for the offence

punishable under section 138 of the Negotiable Instruments Act, 1881

( for short ‘N.I.Act’) is assailed in this appeal under section 378 of Code

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R/CR.A/1429/2006 JUDGMENT

of Criminal Procedure,1973 ( for short ‘Cr.P.C’).

2.

The appellant claimed that the opponent no.2 had borrowed from

him a sum of Rs. 10000/- before 06.07.2002 and to discharge such debt

a cheque was issued to him by her on 06.07.2002 in the sum of

Rs.10000/- which, on presentation with the banker of the said opponent

was dishonoured and returned to the complainant-appellant on

10.11.2002. It is his case that he adhered to proviso (b) to section 138

and issued two notices; one dated 14.11.2002 by registered post A.D.

and the other dated 18.11.2002 posted under postal certificate. While

notice dated 14.11.2002 was produced on the record of the court, the

one dated 18.11.2002 was not produced, though referred in his

testimony by the complainant.

3.

The opponent no.2 did not reply to the notice and therefore,

complaint under section 142 of N.I. Act came to be lodged by the

appellant.

4.

The plea of the opponent no.2 was recorded at Exh. 12 and she

having opted for trial, the case was tried and eventually she was

acquitted.

5.

The trial court recorded the acquittal on the ground that [i] except

the signature, entire body of the cheque was blank when issued to the

appellant and that the writings other than the signatures were filled in

different pens including fountain pen and signature was made by ball

pen. After noticing the said aspect, the trial court went on to consider

the explanation given by the opponent no.2 in her statement under

section 313 of Cr.P.C that she has not given the cheque in question and

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not borrowed any money from the appellant and that she does not know

him and that the cheque book of the accused was lying with one

Ramniklal and his wife which has been misused by the complainant and

Ramniklal. On this basis, the trial court doubted the complainant’s

credentials; [ii] that the notice issued under proviso (b) to section 138 of

N.I. Act was not authored by the appellant since admittedly he did not

sign that notice and the notice signed by him was not on record; [iii] the

notice bears only “Jamnagar” as the address of