Gujarat High Court
Amaratji Bhathiji Parmar vs The State Of Gujarat on 18 December, 2024
NEUTRAL CITATION
R/CR.A/2443/2008 JUDGMENT DATED: 18/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2443 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
Yes -
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AMARATJI BHATHIJI PARMAR
Versus
THE STATE OF GUJARAT & ANR.
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Appearance:
MR HIMANISH JAPEE FOR MR JV JAPEE(358) for the Appellant(s)
No. 1
BAILABLE WARRANT SERVED for the Respondent(s) No. 2
MR PB ODEDRA FOR MR ASHISH M DAGLI(2203) for the
Respondent(s) No. 2
MS MEGHA CHITALIA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 18/12/2024
ORAL JUDGMENT
1. Present appeal is filed by the appellant – original
complainant under Section 378(1)(3) of the Criminal Procedure
Code, 1973 against the impugned judgment and order dated
13.11.2006 passed by the learned Judicial Magistrate First Class,
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Idar in Criminal Case No. 797 of 2001 whereby the learned
Magistrate has acquitted the accused for the offence punishable
under Section 138 of the Negotiable Instruments Act (hereinafter
be referred to as “the N.I. Act“.
2. Brief facts of the present case, in nutshell, are that on
24.02.2001, the respondent – accused had borrowed Rs.83,000/-
from the appellant – original complainant. It is alleged that after
two months, the complainant demanded the said amount,
accused had given a cheque bearing No.42969 dated 02.06.2001
drawn on Dena Bank, Jadar Branch, which came to be deposited
by the appellant in his bank account and the same was returned
with an endorsement “insufficient fund”. It is also alleged that
the appellant had given notice to the respondent – accused and,
thereafter, filed a complaint under Section 138 of the N.I. Act
before the learned Magistrate.
2.1 After hearing the learned counsel appearing for the
respective parties and considering the evidence available on
record, the learned Magistrate acquitted the respondent –
accused for the charges levelled against him.
3. Being aggrieved by and dissatisfied with the aforesaid
judgment and order of acquittal the appellant has preferred this
Appeal.
4. Heard Mr.Himanish Japee, learned counsel for Mr.J. V.
Japee, learned counsel for the appellant, Ms.Megha Chitalia,
learned Additional Public Prosecutor for the respondent – State of
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Gujarat and Mr.P. B. Odedra, learned counsel for Mr.Ashish
Dagli, learned counsel for the respondent – accused at length.
5. Mr.Japee, learned counsel for the appellant, while
referring to the entire oral as well as documentary evidence, has
assailed the impugned judgment and order and has submitted
that the learned Magistrate has not taken into consideration the
evidence connecting the accused to the alleged offence in its
proper perspective. He has submitted that the learned
Magistrate ought to have believed that the appellant has been
able to prove the charges levelled against the accused. He has
submitted that the appellant has produced the evidence in
support of the case, however, the learned Magistrate has
discarded and disbelieved the same and passed the impugned
judgment and order. He has submitted that the accused has not
disputed the issuance of the cheque and the signature and,
therefore, he has not objected such fact. He has submitted that
so far as the finding recorded by the learned Magistrate with
regard to the service of notice to the accused is concerned, the
accused has also not disputed the fact that the notice was not
served upon him and hence, the learned Magistrate has
overlooked this aspect and misread the provision of the law. He
has submitted that the accused has not raised the dispute with
regard to enforceable debt before the learned Magistrate and
therefore the impugned judgment and order passed by the
learned Magistrate is erroneous. According to his submission, the
learned Magistrate ought to have convicted the accused and
ought to have imposed necessary sentence. He has prayed to
allow the present appeal and to quash and set aside the
impugned judgment and order of acquittal.
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6. Mr.Odedra, learned counsel for the respondent –
accused has submitted that the learned Magistrate has not
committed any error of fact and law in passing the impugned
judgment and order of acquittal. He has submitted that the
appellant has failed to establish the fact that he was having
sufficient fund but advance the hand-loan to the accused in the
year 2001. He has submitted that the appellant has not
examined his father and brother as in whose presence the
amount was advanced to the respondent and, therefore, the
learned Magistrate has rightly discussed in para-9 of the
judgment that the appellant has failed to established the fact
that he was having sufficient fund to advance huge amount of
Rs.83,000/-. He has submitted that the appeal being meritless
deserves to be dismissed and the impugned judgment and order
of the learned Magistrate deserves to be confirmed.
7. At this juncture, it is required to be noted that the
present appellant was working as driver. Even in his deposition,
the appellant has admitted that he was not having any bank
account so from where he collected the amount of Rs.83,000/-
and no any document was produced by the appellant with regard
to his salary and out of his salary how he has saved money. In
those days being a driver of the truck, whether it was possible to
earn and save the amount to advance to the others and this fact
was not replied by the appellant before the Court. It was specific
contention of the appellant that the amount of Rs.83,000/-
containing bundle of Rs.100/- each plus Rs.3,000/-, in presence
of his father and brother, he has advanced to the accused as
hand-loan. But the reason best known to the appellant, as to why
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he has not examined his father and brother as witness before the
Court to prove the fact that he has advanced the amount to the
accused. So far as the capacity of the person is required to be
seen, while deciding the complaint filed under Section 138 of the
N.I. Act that whether the appellant is able to advance the amount
at that relevant point of time or not. For the said reason, it is
worthwhile to refer to the decision of the Hon’ble Supreme Court
in the case of Sri Dattatraya Vs. Sharanappa reported in AIR
2024 SC 4103 wherein the Hon’ble Supreme Court has held and
observed in para – 30 as under:-
“30. Moreover, affirming the findings of the Trial Court, the
High Court observed that while the signature of the
Respondent on the cheque drawn by him as well as on the
agreement between the parties herein stands admitted, in
case where the concern of financial capacity of the creditor
is raised on behalf of an accused, the same is to be
discharged by the complainant through leading of cogent
evidence.”
8. This Court has perused the judgment and order of
acquittal rendered by the trial Court and carefully considered the
rival contentions, evidence and material placed on record.
9. This Court is of the opinion that the learned Magistrate
has recorded the findings on the basis of the oral as well as
documentary evidence and the impugned judgment and order is
just and proper and in consonance with the settled principles of
law. When the Court has considered the basic facts of Section
138 of the N.I. Act to prove legal enforceable debt and with
regard to the financial capacity of the person, whether the
complainant is able to advance hand-loan to the others or not,
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however, he was silent on this aspect and even he has not
produced any document in this regard. In the cross-examination,
the complainant has admitted that he was not having any bank
account and earning Rs.3,000/- per month from the
transportation work. If the complainant was earning Rs.3,000/-
per month, for which he has not produced any relevant
document to the said aspect at that relevant point of time. Under
such circumstances, the observation made by the learned
Magistrate is in consonance with the settled principle of law and
sustainable in the eyes of law. On perusal of the cross-
examination of the complainant, it appears that he has admitted
that he was working with the accused as driver and driving the
truck bearing registration No.GJ-9-5000 and even prior to 2001,
he was driving the truck of the accused. It is also revealed from
the deposition of the complainant that there was dispute relating
to the account as the appellant was serving as driver on the said
truck and after completing trip he had not furnished any account
details to the respondent. Therefore, there are all probabilities
that the appellant has filed the complaint wherein there are so
many facts stated, which fact is admitted by the appellant before
the Court. Therefore, the story put forward by the appellant was
rightly disbelieved by the trial Court and after examining oral as
well as documentary evidence, the learned Magistrate has right
passed the impugned judgment and order of acquittal.
Considering the overall facts and circumstances of the case and
perusing the impugned judgment and order of the learned
Magistrate, it transpires that the learned Magistrate has not
committed any error of facts and law in passing the impugned
judgment and order of acquittal.
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10. It is pertinent to refer to the decision of the Hon’ble
Supreme Court in the case of Jugesh Sehgal Vs Shamsher
Singh Gogi reported in 2009 (14) SCC 683 wherein the
Hon’ble Supreme Court has held and observed in para – 9 as
under:-
“9. It is manifest that to constitute an offence under
Section 138 of the Act, the following ingredients are
required to be fulfilled:
(i) a person must have drawn a cheque on an account
maintained by him in a bank for payment of a certain amount
of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in
whole or in part, of any debt or other liability;
(iii) that 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 earlier;
(iv) that cheque is returned by the bank unpaid, either
because of the amount of money standing to the credit of the
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 the bank;
(v) the payee or the holder in due course of the cheque
makes a demand for the payment of the said amount of
money by giving a notice in writing, to the drawer of the
cheque, within 15 days of the receipt of information by him
from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the
said amount of money to the payee or the holder in due
course of the cheque within 15 days of the receipt of the said
notice;”
11. It is well settled by catena of decisions that the an
Appellate Court has full power to review, re-appreciate and
reconsider the evidence upon which the order of acquittal is
founded. However, Appellate Court must bear in mind that in
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case of acquittal there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to him
under the fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless he is
proved guilty by a competent Court of law. Secondly, the
accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened by
the trial Court.
12. Further, if two reasonable conclusions are possible on the
basis of the evidence on record, the Appellate Court should not
disturb the finding of acquittal recorded by the trial Court.
Further, while exercising the powers in appeal against the order
of acquittal, the Court of appeal would not ordinarily interfere
with the order of acquittal unless the approach of the lower Court
is vitiated by some manifest illegality and the conclusion arrived
at would not be arrived at by any reasonable person and,
therefore, the decision is to be characterized as perverse. Merely
because two views are possible, the Court of appeal would not
take the view which would upset the judgment delivered by the
Court below. However, the Appellate Court has a power to review
the evidence if it is of the view that the conclusion arrived at by
the Court below is perverse and the Court has committed a
manifest error of law and ignored the material evidence on
record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on record to find out
whether the accused are connected with the commission of the
crime with which he is charged.
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13. The scope and principles are enunciated by the Hon’ble
Apex Court in case of Chandrappa and others Vs. State of
Karnataka reported in (2007) 4 SCC 415, more particularly
paragraph Nos. 42 and 43, which was subsequently re-
affirmed by the Hon’ble Apex Court Rajesh Prasad Vs. State
of Bihar and another, reported in [2022] 3 SCC 471, wherein,
the Hon’ble Apex Court has enunciated the general principles in
case of acquittal, more particularly in paragraph No. 26 the
general principles are set out by the Hon’ble Apex Court based
upon various decisions of the Hon’ble Apex Court. Then in case
of Babu Sahebagouda Rudragoudar Vs. State of
Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC
149, the Hon’ble Apex Court has dealt with the similar issue,
more particularly, in paragraph Nos. 37 to 40. Hence, I am in
complete agreement with the findings recorded by the trial
Court.
14. It is also worthwhile to refer to the recent decision of the
Hon’ble Supreme Court in the case of Ramesh vs. State of
Karnataka, reported in [2024] 9 SCC 169, wherein the
Hon’ble Supreme Court has held and observed in paras-20 and
21 as under:-
“20. At this stage, it would be relevant to refer to the
general principles culled out by this Court in Chandrappa
and others vs. State of Karnataka , regarding the power of
the appellate Court while dealing with an appeal against a
judgment of acquittal. The principles read thus:
“42. …. (1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
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(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before it
may reach its own conclusion, both on questions of fact
and of law.
(3) Various expressions, such as, “substantial and
compelling reasons”, “good and sufficient grounds”, “very
strong circumstances”, “distorted conclusions”, “glaring
mistakes”, etc. are not intended to curtail extensive
powers of an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of “flourishes of
language” to emphasize the reluctance of an appellate
court to interfere with acquittal than to curtail the power of
the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the trial
court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court.
21. In Rajendra Prasad v. State of Bihar, a three-Judge
Bench of this Court pointed out that it would be essential
for the High Court, in an appeal against acquittal, to clearly
indicate firm and weighty grounds from the record for
discarding the reasons of the Trial Court in order to be able
to reach a contrary conclusion of guilt of the accused. It
was further observed that, in an appeal against acquittal, it
would not be legally sufficient for the High Court to take a
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contrary view about the credibility of witnesses and it is
absolutely imperative that the High Court convincingly
finds it well-nigh impossible for the Trial Court to reject
their testimony. This was identified as the quintessence of
the jurisprudential aspect of criminal justice. Viewed in this
light, the brusque approach of the High Court in dealing
with the appeal, resulting in the conviction of Appellant
Nos. 1 and 2, reversing the cogent and well-considered
judgment of acquittal by the Trial Court giving them the
benefit of doubt, cannot be sustained.”
15. Considering the entire evidence on record, it clearly
appears that there is no credible evidence to connect the present
accused with the alleged crime and the evidence on record is not
so convincing to prove beyond reasonable doubt that the
accused has committed the alleged crime. Therefore, the
accused cannot be convicted on the evidence on record.
16. On perusal of the impugned judgment and order, it clearly
transpires that the trial Court has not committed any error of fact
and law in appreciating the evidence on record and in acquitting
the accused from the charges levelled against him. Even on
reappreciation of the evidence, it clearly transpires that the
prosecution has miserably failed to prove the charge levelled
against the accused beyond reasonable doubt. Therefore, the
impugned judgment and order of the trial Court is sustainable
and the present appeal is liable to be dismissed.
17. In view of the above, the present appeal is devoid of
merits and it deserves to be dismissed. Resultantly, it is
dismissed. The impugned judgment and order of acquittal
passed by the learned Judicial Magistrate First Class is hereby
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confirmed. Bail bond stands cancelled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
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