BADERIPRASAD RAMABHILAS PANDE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr. Matafer Pandey, learned advocate for the applicant- original complainant. This application is filed seeking leave against the impugned judgment and order of acquittal dtd. 16/10/2020 passed by the learned 23 rd Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Surat in Criminal Case No.4256 of 2018, whereby, the learned Magistrate has proceeded to record the acquittal of the respondent no.2 - original accused for the offence punishable under Sec. 138 of the Negotiable Instruments Act.

(2.) Mr. Pandey, learned advocate for the applicant has invited attention of this Court to the reasons assigned by the learned Magistrate while passing the impugned judgment and order of acquittal. He has relied upon the document in nature of mortgage deed entered between the parties, which was produced by the complainant as an additional evidence but same has not been exhibited. He has invited attention of this Court to the conditions incorporated in the aforesaid deed which goes to suggest that the respondent-accused had acknowledged the receipt of an amount of Rs.6.00 lakhs, against which, the respondent accused had furnished copy of original sale deeds of his property. Mr. Pandey further invited attention of this Court to the reply given by the respondent-accused to the legal notice under Sec. 138 of the Negotiable Instruments Act wherein respondent-accused has also not disputed the execution of the aforesaid mortgage deed. The only fact which has been disputed by the respondent-accused is with regard to the payment of the amount of Rs.40,000.00 as against Rs.5000.00 towards outstanding amount. Mr. Pandey by relying upon the aforesaid document has urged this Court that once fact of acknowledgment of an amount being received by the respondent- accused has come on record, the Court may consider his case to grant application for leave to appeal.

(3.) Having heard the learned advocate for the applicant- original complainant and having examined the impugned judgment and order of acquittal, the learned Magistrate has upon appreciation of the evidence, more particularly, the disputed cheque which has been brought on record vide Exh.10 and the document in the nature of mortgage deed, has noticed glaring discrepancy. It is found that date in the disputed cheque is entered is 30/11/2017. The same appeared to be presented for realization before the Bank on 12/12/2017. The further endorsement of the stamp of Bank mentioned date of 12/12/2021. As against that, the date on the mortgage deed, more particularly, issuance of stamp is endorsed as 19/12/2016 whereas it appears that the mortgage deed is executed before the Notary on 7/2/2020. Thus, the execution of the mortgage deed has taken place if one accepts case of the complainant relates to 7/2/2020 which is subsequent to the cheque issued, which bears the date of 30/11/2017. With such attending circumstances which has come on record, in my view, the learned Magistrate has rightly shifted the burden upon respondent - accused to prove his case beyond reasonable doubt. Considering the aforesaid material which has come on record, the burden of proving the fact that cheque has been issued against the transaction as contended by the complainant heavily relies upon the complainant. In absence of any cogent material being brought on record or any witness being examined by the complainant, no error can be find with the approach of the learned Magistrate in recording the order of acquittal. For the aforesaid reasons, I am of the view that no arguable case is made out for considering this leave to appeal. Hence, present application for leave to appeal is not entertained. Present application stands dismissed. Order in Criminal Appeal: In view of dismissal of application for leave to appeal, present appeal also stands dismissed.