NARESHKUMAR LADHAJI JAT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is filed under Sec. 378 of the Code of Criminal Procedure, challenging the judgment and order of acquittal dtd. 13/1/2023 passed by the learned 3 rd Addl. Judicial Magistrate First Class, DeesaCriminal Case No.806 of 2018.

(2.) The case of the complainant is that complainant wants to purchase the land of the Respondent No.2, original accused. However, there was a restrictions under the Sec. 73AA of the Bombay Land Revenue Code,1879, therefore, it was conveyed by the accused that without sanction of the Competent Authority, restricted land cannot be transferred. However, assurance was given that he would seek the permission and necessary procedure would be followed and thereafter, the land would be transferred that towards the sale consideration of the land, Rs.7.00 Lacs was given in the presence of the witnesses to the Respondent No.2, original accused. By lapse of time, procedure for seeking the permission was not initiated, therefore, the complainant demanded the money of the sale consideration back and for that, Respondent No.2- accused had issued the cheque of Dena Gramin Bank, Aakhol Char-rasta (Deesa) Branch, bearing No.2498844 dtd. 20/8/2017. On the said cheque, the thumb impression was made by respondent-accused and assurance was given that the cheque would be honored in favour of the complainant. On depositing the cheque with the Bank on 13/9/2017 with Dena Gramin Bank, Aakhol Char-rasta (Deesa) Branch, which was returned with the endorsement of the "fund insufficient" on 14/9/2017. On informing with regard to dishonoring of the cheque, a notice was issued on 3/10/2017, which was served, as per the information given by the Postal Department on 5/10/2017. As amount of cheque was not paid, private complaint, under Sec. 138 of the Negotiable Instruments Act read with Sec. 142 of the said Act. came to be filed before the Competent Court, which was given number as a Criminal Inquiry Case No.146/2017. On recording the plea and prima-facie considering the evidence, learned Court had ordered to register the Criminal Case and to issue the process under Sec. 204 of the Code of Criminal Procedure, 1973. To prove the case, the complainant had examined the 4 witnesses and produced 10 documentary evidences. On filing the closing pursis, further statement under Sec. 313 of the Code of Criminal Procedure was recorded wherein, the defence was raised by the accused that thumb impression, which is on the cheque i.e. Exh.48, was not made by the accused and the thumb impression was taken from the other person, therefore, he prayed to send the cheque for examination with finger print experts. To prove his defence, complainant had examined 3 witnesses and produced 7 documentary evidences. The learned trial Court, after considering the evidence placed by both the parties and the arguments advanced by the learned advocates, comes to the conclusion that the complainant failed to prove the case against the respondent-accused under Sec. 138 of the Negotiable Instruments Act and therefore, the judgment and order of the acquittal was passed on 13/1/2023, which is the subject matter of challenge before this Court.

(3.) Heard the learned advocate, Mr.K.B.Virvadiya, for the appellant. Learned advocate for the appellant, original complainant submitted that though accused had put the prima- facie case against the respondent-accused and though presumption, which is in favour of the complainant provided under Ss. 118 and 139 of the Negotiable Instruments Act, was not rebutted by the respondent - accused, the learned trial Court had acquitted the respondent-accused from the charges. Learned advocate for the appellant further submits that as the appellant is an agriculturist and respondent No.2 is also an agriculturist and both are knowing to each other and the appellant wants to purchase the agriculture land of the respondent No.2, which was restricted tenure as per Sec. 73AA of the Bombay Land Revenue Code, 1879, the assurance was given by the respondent No.2 to obtain the necessary permission from the competent Authority and on the same assurance, the amount of the sale consideration of Rs.7.00 lacs was paid by the appellant herein to the respondent No.2. As necessary permission from the Competent Authority was not availed, the amount, which was given towards the sale consideration, was demanded back for which Cheuqe No.2498844 dtd. 20/8/2017 of Dena Gramin Bank, Aakhol Char-rasta (Deesa) Branch was issued in favour of the present appellant, which was returned with the endorsement as "insufficient funds" for which, the demand notice was issued on 10/11/2017 and though respondent No.2 had received the same notice, Respondent No.2 had not replied the same within stipulated time and therefore, the present appellant, original complainant was constrained to file the criminal case before the Competent Court.