SHREE HIRANI ENTERPRISE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application is filed under Sec. 378(4) of the Code of Criminal Procedure seeking leave against the impugned judgment and order dtd. 20/2/2020 passed by the learned Additional Chief Judicial Magistrate, Ahmedabad (Rural) in Criminal Case No. 10358 of 2018. By the said judgment and order, the learned Magistrate has proceeded to record the acquittal of present respondent no.2 for the offences punishable under Sec. 138 of the Negotiable Instruments Act.

(2.) Heard Mr. Pratik Jasani, learned advocate who has appeared for Mr. Kuntal Joshi, learned advocate for the applicant- original complainant and Mr. Krunal Shah, learned advocate who has appeared with Mr.Tejas Shukla, learned advocate for the respondent -accused. Rule returnable forthwith. Mr. Shah, learned advocate waives service of Rule on behalf of the respondent- accused and Learned Additional Public Prosecutor waives service of Rule on behalf of the respondent State.

(3.) Learned advocate for the applicant has at the outset submitted that the learned Magistrate has proceeded to record the acquittal mainly on the ground that the offence under Sec. 138 of the Negotiable Instruments Act is not attracted noticing that part payment of amount of disputed cheque has been realized by the applicant and there was no compliance of Sec. 56 of the Negotiable Instruments Act. Learned advocate for the applicant has made various attempts to convince the Court that trial Court has committed serious error in interpreting Sec. 56 of the Negotiable Instruments Act in the facts of the present case. Learned advocate has relied upon the documentary evidence brought on record, more particularly, the legal notice dtd. 14/9/2018 issued by the complainant calling upon the respondent- accused to make payment of the cheque amount. It is further submitted that from the averments made in the said demand notice, it clearly transpires that in fact the complainant had fairly pointed out to the respondent -accused about realization of the part amount of Rs.8,30,720.00 towards outstanding amount of Rs.13,46,224.00 on 8/6/2018. By referring to the aforesaid fact, learned advocate has further invited attention of this Court to the reply given by the respondent- accused which is brought on record vide Exh.13 and has submitted that in fact the defence which was raised by the respondent - accused goes to indicate the conduct of the respondent. The respondent had shirked from his liability to make payment on 13/5/2018 as alleged in the legal notice. It is further submitted that further defence with regard to return of four bags with 100 Kg of material was raised to contend that no outstanding amount is to be paid to the complainant. Having noticed such defence of the respondent -accused, complainant was constrained to approach the Court of learned Magistrate by lodging the complaint under Sec. 138 of the Negotiable Instruments Act.