VIVEKKUMAR BIPINCHANDRA VYAS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr. Kaushal Jani, learned advocate for the applicant - original complainant, Mr. Bhavesh Patel, Mr. Hardik Mehta, learned APP for the respondent No.1 - State and learned advocate for the respondent Nos.2 and 3 - original accused.

(2.) This application is filed under Sec. 378(4) of the Code of Criminal Procedure, seeking leave to appeal against the impugned judgment and order dtd. 30/10/2021 passed by the learned 2 nd Additional Civil Judge and JMFC, Vadodara, in Criminal Case No.41445 of 2018. By the said judgment and order, the learned Magistrate has proceeded to record the order of acquittal of the respondent No.2 for the offence punishable under Sec. 138 of the Negotiable Instruments Act.

(3.) Mr. Jani, learned advocate has invited attention of this Court to the reasons assigned by the learned Magistrate. He has invited attention of this Court to the order dtd. 27/11/2019 passed below Exhibit 45 and 46 and has submitted that the learned Magistrate has proceeded to record the acquittal, while taking into consideration the fact that the complaint has been filed through Power of Attorney holder. The learned Magistrate has taken into consideration the admission of the Power of Attorney holder in his cross-examination that he did not have any personal knowledge about the transactions entered between the parties. At one stage, the learned Magistrate has relied upon the judgment of the Hon'ble Apex Court in the case of Shankar Finance & Investment Vs. State of Andhra Pradesh reported in AIR 2009 SC 422 and has arrived at the conclusion that the complaint through the Power of Attorney holder is maintainable. He has further submitted that the cogent material has been brought on record to establish the transactions between the parties. The very fact that the payment was made through the RTGS and through the cheque and the agreement executed between the parties is sufficient to prove the fact that there exist land transaction between the parties and the disputed cheque was given to the original complainant against such legally enforceable debt. He has further invited attention of this Court to the fact that the respondents - accused have failed to respond to the statutory notice. Even no specific defence has been raised under Sec. 313 of Cr.P.C. by disputing the aforesaid cogent material being brought on record by the complainant. In such circumstances, the learned Magistrate ought to have accepted the fact that the basic ingredients of Sec. 138 has been complied with. He, therefore, urged this Court to grant leave to appeal.