VIJAYKUMAR RAMESHCHANDRA MEHTA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Ms. Nisha Parikh, learned advocate for the applicant and Ms. Mariya Dalal, learned advocate who has appeared on behalf of Mr.Soni, learned advocate for the respondent no.1- original accused.

(2.) Ms. Parikh, learned advocate has invited attention of this Court to the reasons assigned by the learned trial Court while recording order of the acquittal. She has invited attention of this Court to the case of the complainant and has submitted that initially the respondent- accused had sought financial aid of Rs.10.00 lakhs. Considering the friendly relation, the complainant had given hand loan of an amount of Rs.9,50,000.00. It is the case of the complainant that an amount of Rs.97000.00 was given to the accused on 13/12/2018 which was transferred by RTGS in the account of accused no.2. Again an amount of Rs.97000.00 was transferred by way of RTGS in the account of complainant on 8/1/2019. It is further contended in the complaint that the amount of Rs.7,56,000.00 was given to the accused in cash. The complainant had requested the accused to repay such amount, against which, the accused had handed over cheque bearing no.019413 dtd. 5/10/2020 of account of Bank of India, Vejalpur Branch, Ahmedabad for an amount of Rs.9,50,000.00. The complainant had deposited the aforesaid cheque, which was returned back on 7/10/2020 with the returned memo issued by the Bank by stating reasons that the payment has been stopped by the drawer. The statutory notice dtd. 29/10/2020 was addressed by the complainant to the respondent no.2 which was received by the accused on 31/10/2020. The accused had failed to respond to such notice by giving reply nor demand which was raised by the accused was fulfilled. In such circumstances, complainant was constrained to approach the Court of learned Judicial Magistrate by lodging the complaint on 10/12/2020, which was registered as Criminal Case No.1554 of 2020 for the offences punishable under Sec. 138 of the NI Act.

(3.) The accused on service of summons had appeared before the learned Magistrate and had raised specific defence of misuse of cheque. In fact, at the stage of leading of evidence the accused has examined the witnesses viz. Gaurang R Makwana vide Exh.25 in support of his defence. The accused has also led documentary evidence which includes copy of criminal inquiry case No.58 of 2021 vide Exh.22, copy of bank statement of the accused vide Exh.26, computerize copy of bank of stopped payment transaction at Exh.27 and certified copy of the application of stopped payment addressed by the accused to the bank at Exh.28. By relying upon the aforesaid documents, the accused has raised strong defence about the security cheque being misused by the complainant. The attention of this Court to filing of the complaint in the nature of inquiry case, wherein, it is contended by the accused that hand loan was given of an amount of Rs.4,42,000.00 against which, part of an amount of Rs.1.00 lakhs was made and as against for remaining amount of Rs.3,32,000.00 five blank cheques were given but under the coercion. The application was also given to the police station through advocate. It is therefore, submitted that the learned Magistrate has rightly not accepted the case as the complainant has failed to prove the existence of lawful debt.