DASHRATHBHAI TRIKAMBHAI PATEL Vs. HITESH MAHENDRABHAI PATEL

JUDGEMENT

(1.) This appeal arises from a judgment dtd. 12/1/2022 of the High Court of Gujarat. The High Court dismissed an appeal against the judgment of the Additional Chief Judicial Magistrate dtd. 30/8/2016 by which the first respondent was acquitted of the offence under Sec. 138 of the Negotiable Instruments Act 1881[1]. At the core, the issue is whether the offence under Sec. 138 of the Act would deem to be committed if the cheque that is dishonoured does not represent the enforceable debt at the time of encashment.

(2.) On 10/4/2014, the appellant issued a statutory notice under Sec. 138 of the Act to the first respondent-accused. It was alleged that the first respondent borrowed a sum of rupees twenty lakhs from the appellant on 16/1/2012 and to discharge the liability, issued a cheque dtd. 17/3/2014 bearing cheque No. 877828 for the said sum. It was further alleged that the cheque when presented on 2/4/2014 was dishonoured due to insufficient funds. The appellant issued the notice calling the first respondent to pay the legally enforceable debt of Rs.20,00,000.00:

(3.) On 25/4/2014, the first respondent addressed a response to the statutory notice where he alleged the following: