SHASHIKANT NARANBHAI RATHOD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application is filed by the applicant-original complainant seeking Special Leave to Appeal under sub-section (4) of Section 378 of the Code of Criminal Procedure, 1973, challenging the order of acquittal recorded by learned Additional Chief Metropolitan Magistrate (Negotiable Instrument Act) Criminal Case No.13050 of 2017, whereby respondent No.2-original accused came to be acquitted from the charge under Section 138 of the Negotiable Instrument Act. Vide order dated 13.1.2020, record and proceedings from the trial Court was called for, which has been received.

(2.) Mr.Yogesh Kanade, learned advocate for the applicant has taken me through the findings recorded by the learned Magistrate and submitted that respondent No.2-original accused is teacher by profession and, therefore, her defence that because of good relations with applicant, she has signed the agreement involved in this case without reading it, is not believable. He has further submitted that R/CR.MA/8777/2019 ORDER since signature over the cheque is not disputed by her and issued from her account, the presumption is required to be raised under Sections 139 and 118 of the Negotiable Instruments Act. He has further submitted that learned Magistrate has recorded reasons to acquit the accused which have no bearing over the issues involved in this case. He has further submitted that respondent NO.2-original accused has failed to rebut the presumption by leading cogent evidence and, therefore, this Court may grant Special Leave to Appeal and admit the appeal against respondent NO.2-original accused.

(3.) Though Mr.N.M.Ranka, learned advocate appears for respondent NO.2-original accused, is not present before the Court. However, I have gone through the record and proceedings as also the impugned order passed by the learned Magistrate. According to the complainant, on 16.5.2011, Rs.3 lakhs were advanced to respondent NO.2-original accused as loan and writing on a stamp paper of Rs.100 came to be executed before the notary. As recorded in the said agreement, it was required to be returned back within two years. However, it is reflected in the complaint that Rs.1 lakh was repaid within time and for remaining Rs.2 lakhs, further time was asked for by the respondent No.2-original accused. Therefore, further two years time was granted to her again on executing a writing on a stamp paper of Rs.100 dated 20.1.2014 before the notary. Still, however, she again failed to repay the same within the time and, therefore, on demand being made, she had issued a cheque dated 16.12.2016 of Rs.1,50,000/- out of the said debt of Rs.2 lakh as a part payment thereof. It is further mentioned in the complaint that on presentation to the bank for realization of cheque it returned unpaid because of insufficient fund and after following due procedure prescribed under the Negotiable Instruments Act, the present complaint has come to be filed against respondent NO.2 accused.