ANIL MOHANBHAI GOHIL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These applications are filed for grant of Leave to Appeal against the acquittal recorded by the Additional Judicial Magistrate First Class, Bharuch vide order dtd. 25/1/2023 passed in Criminal Case Nos.4592 of 2021, 4593 of 2021 & 4590 of 2021.

(2.) Learned advocate for the applicant submitted that an error is committed by the Trial Court by concluding that the presumption under Sec. 139 of the Act has been successfully rebutted on the ground that the applicant was not holding a license under Money Lending Act and that the applicant had failed to establish his source of income to fund the loan towards discharge of which the cheque in question was issued.

(3.) Learned advocate has drawn attention of this Court to the pursis filed on behalf of respondent-accused himself vide Exh.6 dtd. 23/8/2021, wherein he has admitted to the dues of Rs.5.00lac for which the cheque was issued. It is submitted that despite such admission coming on the record, the Trial Court has not even referred to such admission, but has gone on the issue of successful rebuttal of presumption on the aforesaid grounds. It is also submitted that after pursis at Exh.6, there was no other scope for the Court to examine the existence of legally enforceable debt, as such filing of such pursis resulting into admission of dues has been appreciated in the decision of this Court in case of Ghanshaymbhai Natvarlal Patel Vs. State of Gujarat reported in 2006 1 GLR 2006 particularly in Paragraph No.31, wherein the pursis was held to be a sufficient evidence not only to establish the dues, but also in addition to the statutory presumption. The other ground with regard to the ability of the applicant to lend the money is also against the decision of the Apex Court in case of Rohitbhai Jivanlal Patel Vs. State of Gujarat & Anr, wherein in Paragraph No.18, it is held that the inability of the complainant to establish the source of fund for advancing the loan is not sufficient for rebutting the presumption and that the approach of the Trial Court would be against the principle of presumption in law. It is also submitted that the issue with regard to the applicant not having a money lending license was not even the defence of the respondent- accused, which is evident from the fact that no such ground was taken at the inception while replying to the statutory demand notice, as there was no reply at all on the part of the respondent- accused.