BHIKHABHAI RANCHHODBHAI MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner-original complainant has preferred this revision application under section 397 of the Criminal Procedure Code, 1973 challenging the judgment and acquittal order dated 30.8.2000 recorded by the learned Addl.Sessions Judge of the City Sessions Court, Court No. 15, Ahmedabad in Criminal Appeal No.59/99 under which the learned Addl.Sessions Judge allowed the said appeal of contesting respondent no.2 herein and set aside the judgment and conviction order recorded by the learned Metropolitan Magistrate in Criminal Case No.2058/97 and directed that the fine be refunded to respondent no.2 herein. The present petitioner had filed criminal case no.2058/97 on 7.10.1997 against respondent no.2 herein for offence punishable under section 138 of the Negotiable Instrument Act, 1881 (for short, 'the Act') After registering the complaint and after hearing the evidence, the learned Metropolitan Magistrate found that the second respondent herein was acquitted of offence punishable under Section 138 of the said Act and consequently after hearing him on the point of quantum of punishment, the learned Magistrate, court No.10 convicted the second respondent for offence punishable under section 138 of the said act and directed that he shall undergo simple imprisonment for a period of six months and shall pay fine of Rs.50,000.00. The learned Magistrate further directed that in case of default in payment of fine, the second respondent shall undergo further simple imprisonment for a period of one month.

(2.) Feeling aggrieved by the said judgment and conviction order dated 13.7.1999, the second respondent herein preferred the aforesaid criminal appeal before the said Sessions Court. After hearing the learned Advocates for the parties and after going through the Records and Proceedings, the learned Addl.Sessions Judge, Court no.15 allowed the appeal of the second respondent, set aside the judgment and order of the learned Magistrate in criminal case no.2058/97 and directed refund of fine paid by the second respondent. Feeling aggrieved by the said judgment and acquittal order passed by the learned Addl.Sessions Judge, the petitioner-original complaint has preferred this Revision Application before this Court. It has been mainly contended here by the petitioner above named that the learned Addl.Sessions Judge has committed serious illegality in holding that the second respondent has not committed any offence. That the judgment and order of the learned Addl.Sessions Judge are against the evidence on record and the learned Addl.Sessions Judge has not appreciated the object of the Negotiable Instrument Act. That the learned Addl.Sessions Judge has erred in appreciating the evidence on record. That the learned Addl.Sessions Judge has erred in not appreciating the fact that the Banakhat in question was executed by Bhikhabhai Motiram i.e. respondent no.2 herein and the said cheque was also given by him. That once the cheque was issued and it was returned for want of payment, then the second respondent was responsible and liable for the said dishonour of the said cheque under the provisions of section 138 of the said Act. That the learned Addl.Sessions Judge has failed to appreciate the said aspect of the case. That the learned Addl.Sessions Judge has failed to appreciate the evidence of Jivubhai Jethabhai at Exh.3 in which there is a mention of 'hawala' to the second respondent and the second respondent is entitled to Rs.1,07,000.00, out of which 50,000/- was given to the present petitioner and for the remaining amount the second respondent had given cheque which was returned for non-payment. That the learned Addl.Sessions Judge has committed error in holding that there was no direct transaction between the petitioner and respondent no.2. That this finding has been recorded by him against the evidence on record. That the learned Addl.Sessions Judge has failed to appreciate the evidence at Exhs. 13, 14, 15 and 16 which are the Banakhat, Power of Attorney, Legal notices and original documentary evidence are not in favour of respondent no.2 which establishes that there was agreement to sale between the parties more particularly as per the deposition of Jivubhai Jethabhai at Exh.3. That the learned Addl.Sessions Judge has failed to appreciate the registered agreement to sale which was filed at Exh.15 as well as xerox copies of the documents which are on record. That even otherwise the judgment and order of the learned Sessions Judge are illegal and improper and deserve to be set aside. The petitioner has, therefore, prayed that the present petition be allowed, the judgment and acquittal order of the learned Sessions Judge be set aside and the judgment and conviction order recorded by the learned Metropolitan Magistrate referred to hereinabove be restored.

(3.) After filing the present Revision Application, the learned Advocate for the petitioner has sought for adjournment, time and again, and the matter has been fixed today. However, the matter was called out by this court on four occasions in the first session but the learned advocate for the petitioner was not present on any of the aforesaid calls. Even in the second sitting, after 2.15 the matter was called out time and again yet the learned Advocate for the petitioner has not responded to the said calls. Therefore, this court did not have the benefit of hearing the learned Advocate for the petitioner in order to appreciate the contentions raised in the memo of the Revision Application by the present petitioner. Therefore, there was no alternative but to hear the learned APP Mr K G Sheth on behalf of the State. Mr. Sheth has taken me through the judgment of the learned Addl.Sessions Judge. He has also taken me through the judgment of the learned Metropolitan Magistrate. On going through the said judgments, learned APP was not in a position to support the present petition and it was his argument that the learned Addl.Sessions Judge was right in allowing the appeal and in acquitting present respondent no.2. On going through the judgment of learned Addl.Sessions judge, it is very clear that the learned Sessions Judge has recorded finding of fact that the complainant has denied a suggestion but when he was shown Banakhat at Exh.15, he has admitted that he has executed the Banakhat in favour of Bhikhabhai Motibhai, who was not accused before the trial court nor he was party before the Sessions Court nor here. The learned Sessions Judge has also observed that in spite of such facts on record, the complainant who is the petitioner before this court has denied any transaction with the accused and also receipt of the amount of Rs.143,000/under the said Banakhat at Exh.15. The learned Sessions Judge has recorded finding that therefore there is no privity of the contract between the complainant and accused and therefore, the version as put by the accused to the effect that the complainant has sold the land to other persons stands proved and also finds support from the evidence of the complainant himself.