KANTILAL AMBALAL SHRIMALI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr. Manoj Shrimali, learned advocate for the applicant- original complainant, Mr. Bhas Mankad, learned advocate for the respondent no.2- original accused and Ms. Patel, learned Additional Public Prosecutor for the respondent State.

(2.) This is an application seeking leave to appeal filed under Sec. 378(4) of the Code of Criminal Procedure challenging the judgment and order of acquittal dtd. 25/2/2019 passed by the learned 2nd Additional Chief Judicial Magistrate, Gandhinagar in Criminal Case No.4740 of 2017 whereby learned trial Court has recorded order of acquittal of respondent no.2 for the offences punishable under Sec. 138 of the Negotiable Instruments Act.

(3.) Mr. Shrimali, learned advocate for the applicant has invited attention of this Court to the reasons assigned by the trial Court while not entertaining the complaint. He has submitted that learned trial Court failed to consider the documentary evidences placed on record by the applicant - original complainant vide Exh. 9 to 15. He invited attention of this Court to the reasons recorded by the learned trial Court wherein the trial Court had in fact accepted the case of the applicant- appellant that the disputed cheque was issued from the account of the accused and the accused had not disputed the signature on the cheque. He, therefore, submitted that statutory presumption under Sec. 118 r/w Sec. 139 of the Negotiable Instruments Act had arisen in favour of the applicant-original complainant. He further submitted that having recorded this the trial Court ought not to have accepted the defence raised by the accused in cross- examination of the complainant by recording finding that the complainant had failed to establish the case as alleged in the complaint. He further submitted that the trial Court failed to take into consideration the admission of the accused available in the form of statement recorded under Sec. 313 . He further referred to and rely upon the Memorandum of Understanding dtd. 16/7/2016 which is placed on record as Annexure B and submitted that in fact respondent no.2 had agreed in the said agreement to repay an amount of Rs.1,80,000.00 borrowed by him against amount to be deposited for allotment of the flat by AUDA and said amount was agreed to be repaid by 10/8/2016. He therefore, submitted that in absence of payment being made by 10/8/2016, the respondent no.2 accused had issued cheque dtd. 3/8/2017, against such outstanding debt. He, therefore, urge this Court to grant leave to appeal. He alternatively urged that the complainant may be given one opportunity to lead this agreement as evidence and matter may be remanded to examine same.