Gujarat High Court
Kalpeshbhai Rambhai Patel Proprietor … vs State Of Gujarat on 18 December, 2024
NEUTRAL CITATION
R/CR.MA/17560/2024 ORDER DATED: 18/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL)
NO. 17560 of 2024
In
F/CRIMINAL APPEAL NO. 21634 of 2024
With
F/CRIMINAL APPEAL NO. 21634 of 2024
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KALPESHBHAI RAMBHAI PATEL PROPRIETOR OF SHRI SAI FAB
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. RADHESH Y VYAS(7060) for the Applicant(s) No. 1
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 ORDER
ORDER IN CRIMINAL MISC. APPLICATION:
1. Present application is filed by the applicant – original
complainant under Section 378(4) of the Criminal Procedure
Code seeking leave to appeal against the impugned judgment
and order dated 03.01.2024 passed by the learned 14 th
Additional Sessions Judge, District: Surat (hereinafter be referred
to as “the first Appellate Court”) in Criminal Appeal No. 216 of
2022 whereby the learned Additional Sessions Judge has allowed
appeal filed by the accused and reversed the judgment and
order dated 05.04.2022 passed by the learned 9 th Additional
Chief Judicial Magistrate, Surat (hereinafter be referred to as “the
trial Court”) in Criminal Case No. 2992 of 2019 whereby thePage 1 of 9
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learned Magistrate allowed the complaint filed by the
complainant and convicted the accused and ordered to undergo
one year simple imprisonment and to pay cheque amount and in
default of payment to undergo further three months simple
imprisonment.
2. Being aggrieved and dissatisfied by the impugned
judgment and order of acquittal passed by the first Appellate
Court, the present application for leave to appeal is filed by the
applicant along with the criminal appeal.
3. Heard Mr.Radhesh Vyas, learned counsel appearing for the
applicant at length.
4. Mr.Vyas, learned counsel has submitted that the first
Appellate Court has committed an error in passing the impugned
judgment and order whereby the first Appellate Court has
acquitted the accused though he was convicted by the trial
Court. He has submitted that the trial Court has, after
considering all relevant material and oral as well as documentary
evidence, passed an order of conviction. He has submitted that
the first Appellate Court has ignored and overlooked the
evidence which is in the nature that the accused was facing
criminal case wherein accused has filed the purshis before the
trial Court at Exhibit 41, 42, 43 and 44 to the effect that he will
pay all the dues so far as the complaint is concerned. He has
submitted that the first Appellate Court has not considered the
said documents while dealing with the contention raised by the
first Appellate Court and, thus, the impugned judgment and
order of acquittal is unjust and illegal. He has submitted that thePage 2 of 9
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accused was facing many criminal cases in similar in nature for
the offence under Section 138 of the Negotiable Instruments Act
(hereinafter be referred to as “the N.I. Act“) and under the
circumstances, the trial Court has not committed any error in
coming to the conclusion that the accused was held guilty for the
alleged offence, however, the said fact was not properly
appreciated by the first Appellate Court. He has submitted that
the cheque was issued by the company i.e. Ambaji Textile from
the current bank account which was managed and maintained by
Kanaiyalal Gandhi and the said cheque was signed by Kanaiyalal,
but Vishal Kanaiyalal was joined as party respondent though he
was not drawer and no any legal enforceable debt against the
accused. He has submitted that the cheque was issued by the
Ambaji Textile being proprietor and, therefore, the trial Court
has passed by the judgment and order convicting the accused
which is not properly appreciated by the first Appellate Court
while passing the impugned judgment and order of acquittal. He
has submitted that the present application deserves to be
allowed.
5. It is first and foremost Section 138 of the N.I. Act, which
reads thus:-
“138. Dishonour of cheque for insufficiency, etc., of
funds in the account.– Where any cheque drawn by a
person on an account maintained by him with a banker for
payment of any amount of money to another person from
out of that account for the discharge, in whole or in part, of
any debt or other liability, is returned by the bank unpaid,
either because of the amount of money standing to the
credit of that 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 that bank, such
person shall be deemed to have committed an offence andPage 3 of 9
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shall, without prejudice to any other provisions of this Act,
be punished with imprisonment for a term which may be
extended to two years, or with fine which may extend to
twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply
unless–
(a) the 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;
(b) the payee or the holder in due course of the cheque, as
the case may be, 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 thirty days of the receipt of
information by him from the bank regarding the return of
the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of
the said amount of money to the payee or, as the case may
be, to the holder in due course of the cheque, within fifteen
days of the receipt of the said notice.
Explanation.–For the purposes of this section, “debt or
other liability” means a legally enforceable debt or other
liability.]”
6. The Hon’ble Supreme Court in number of cases has
reiterated that if the ingredients of Section 138 of the N.I. Act is
to be satisfied then in that case only the Court can convict the
accused person. In the present case, it is an admitted fact that
the cheque was issued by the proprietorship and signed by
Kanaiyalal, in fact, though the cheque was issued by Kanaiyalal
on behalf of the Ambaji Textile, however, he was not joined as
party to the proceedings but instead of him, his son Vishal was
joined as party respondent. Under such circumstances, the first
Appellate Court has rightly considered the said aspect while
dealing with the contention raised by the concerned partyPage 4 of 9
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referring and relying upon the decision of the Hon’ble Supreme
Court in the case of Krishna Trading Company,
Proprietorship Firm & Others Vs. State of Gujarat and
others reported in 2017 (2) GLR 82.
7. It is worthwhile to refer to the decision of the Hon’ble
Supreme Court in the case of Indus Airways Private Limited
Vs. Magnum Aviation Private Limited reported in (2014) 12
SCC 539 wherein the Hon’ble Supreme Court has held and
observed in paras – 13, 14, 15, 16 and 17 as under:-
“13. The explanation appended to Sec. 138 explains the
meaning of the expression ‘debt or other liability’ for the
purpose of Sec. 138. This expression means a legally
enforceable debt or other liability. Sec. 138 treats
dishonoured cheque as an offence, if the cheque has been
issued in discharge of any debt or other liability. The
explanation leaves no manner of doubt that to attract an
offence under Sec. 138, there should be legally enforceable
debt or other liability subsisting on the date of drawal of the
cheque. In other words, drawal of the cheque in discharge
of existing or past adjudicated liability is sine qua nonfor
bringing an offence under Sec. 138. If a cheque is issued as
an advance payment for purchase of the goods and for any
reason purchase order is not carried to its logical
conclusion either because of its cancellation or otherwise,
and material or goods for which purchase order was placed
is not supplied, in our considered view, the cheque cannot
be held to have been drawn for an exiting debt or liability.
The payment by cheque in the nature of advance payment
indicates that at the time of drawal of cheque, there was no
existing liability.
14. In Swastik Coaters [2], the single Judge of the Andhra
Pradesh High Court while considering the explanation to
Sec. 138 held :-
[“….Explanation to Sec. 138 of the Negotiable Instruments
Act clearly makes it clear that the cheque shall be
relateable to an enforceable liability or debt and as on the
date of the issuing of the cheque there was no existingPage 5 of 9
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liability in the sense that the title in the property had not
passed on to the accused since the goods were not
delivered. ….”]
15. The Guj. High Court in Shanku Concretes dealing with
Sec. 138 of the N.I. Act held that to attract Sec. 138 of the
N.I. Act, there must be subsisting liability or debt on the
date when the cheque was delivered. The very fact that the
payment was agreed to some future date and there was no
debt or liability on the date of delivery of the cheques
would take the case out of the purview of Sec. 138 of the
N.I. Act. While holding so, Guj. High Court followed a
decision of the Madras High Court in Balaji Seafoods [4].
16. In Balaji Seafoods 4, the Madras High Court held :-
[“Sec. 138 of the Negotiable Instruments Act makes it clear
that where the cheque drawn by a person on an account
maintained by him with a Banker for payment of any
amount of money to another person from out of that
account for the discharge, in whole or in part, of any debt
or other liability, is returned by the Bank unpaid, either
because of the amount of money standing to the credit of
that 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 that Bank, such person shall
be deemed to have committed an offence under Sec. 138
of the Act. The explanation reads that for the purposes of
this Section, ‘debt or other liability’ means a legally
enforceable debt or liability.”]
17. The Kerala High Court in Ullas [5] had an occasion to
consider Sec. 138 of the N.I. Act. In that case, the post-
dated cheque was issued by the accused along with the
order for supply of goods. The supply of goods was not
made by the complainant. The accused first instructed the
Bank to stop payment against the cheque and then
requested the complainant not to present the cheque as he
had not supplied the goods. The cheque was dishonoured.
The single Judge of the Kerala High Court held, “…Ext.P1
cheque cannot be stated to be one issued in discharge of
the liability to the tune of the amount covered by it, which
was really issued, as is revealed by Ext. D1, as the price
amount for 28 numbers of mixies, which the complainant
had not supplied. …”
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8. 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.
9. 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
contrary view about the credibility of witnesses and it is
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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.”
10. On perusal of the impugned judgment and order of
acquittal, it clearly transpires that the first Appellate 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. Therefore, the impugned judgment
and order of the first Appellate Court is sustainable.
11. Considering the aforesaid facts and circumstances of the
case and the decisions of the Hon’ble Supreme Court, I am of the
opinion that the application seeking leave to appeal deserves to
be dismissed and accordingly, it is dismissed.
ORDER IN CRIMINAL APPEAL:
Since the application for leave to appeal is declined, no
order is required to be passed in the criminal appeal and hence,
the same stands disposed of accordingly.
Record and proceedings, if any, sent back to the concerned
trial Court forthwith.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHALPage 9 of 9
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