CHETAN SURESHBHAI MAVANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Mr. Bhargav Pandya, learned Additional Public Prosecutor waives service of Rule on behalf of the respondent State.

(2.) Heard Mr. Samir Afzalkhan Pathan learned advocate for the applicant. Mr. Pathan, learned advocate for the applicant has invited attention of this Court to the findings recorded by the learned Additional Judicial Magistrate, First Class, Dhoraji while recording order of acquittal. He has further relied upon Sec. 313 statement of the accused and the statement of the Bank Account of the accused at Exh.34, more particularly, entry dtd. 19/3/2020, whereby, an amount of Rs.1,50,000.00 through cheque has been paid to the complainant. Against the aforesaid document, learned advocate for the applicant has further invited attention of this Court to the cross examination of the complainant. Learned advocate for the applicant has raised specific contention that the learned Magistrate committed serious error by treating the earlier transaction of an amount of Rs.1,50,000.00 as forming part of the transaction in dispute and has erroneously applied Sec. 56 of the Negotiable Instruments Act. He has submitted that it has clearly come out in the cross-examination of the complainant that the Bank Statement at Exh.34 relied upon by the accused relates to the previous transaction and had nothing to do with the present transaction. The very fact that two different cheques were issued by the accused itself indicates the existence of two separate transactions. He further submitted that right from inception it is the case of the complainant that an amount of Rs.5.00 lakhs was borrowed by the accused as hand loan without any interest. Even the legal notice issued by the complainant was not replied by the accused. He therefore, urged this Court to grant leave to appeal.

(3.) Considering the submissions made by the learned advocate for the applicant - complainant as well as grounds raised in the memo of appeal, prima facie, this Court is of the view that the learned Magistrate has failed to take into consideration the evidence of the complainant, more particularly, in the cross- examination where the complainant has offered explanation about two distinct transactions, present application requires consideration. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted. Rule is made absolute to the aforesaid extent.