HARSHADBHAI CHAMPAKBHAI NARIELWALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant original complainant has preferred this appeal under Section 378 of the Criminal Procedure Code, 1973 and challenged the judgment and order of acquittal dated 31.1.2009 passed by the learned 6th Additional Senior Civil Judge and JMFC, Bharuch in Criminal Case No.4014 of 2006 acquitting the respondent accused for the offence punishable under Section 138 of the Negotiable Instruments Act (for short the Act).

(2.) ACCORDING to the complainant, the accused is doing the business in name of Krishna Textiles. The accused took loan from him and on settlement of account, in January, 2006, Rs.9,50,000/- remained payable by the accused and the settlement documents were destroyed. The accused gave cheque No.066136 dated 21.4.2006 for Rs.9,50,000/- drawn on Prime Cooperative Bank Limited, Bharuch branch. The cheque was presented in the bank, but it returned unpaid with endorsement Insufficient Funds on presentation of cheque. Therefore, notice through advocate was served to the accused, but he did not pay the unpaid amount of cheque, but gave evasive reply. Therefore, reply to the reply was given through advocate. Despite that the accused did not comply with the notice. Therefore, complaint under section 138 of the Act was filed.

(3.) LEARNED advocate Mr. Kogje mainly submitted that the case was tried as summary case and successor Magistrate, relying upon the evidence recorded by his predecessor, delivered the judgment. Therefore, the trial is vitiated and hence, the impugned judgment is required to be set aside and the case is required to be remanded to the trial Court for fresh trial. He relied upon the decision in the case of Nitinbhai Saevatilal Shah & another Vs. Manubhai Manjuibhai Panchal and another, reported in (2011) 9 SCC 638.