GOPALCHAND HOTCHAND Vs. VASWANI GURMUKHDAS BHAGWANDAS AND ORS.

JUDGEMENT

(1.) LEAVE to amend the surname of the Accused No. 1 as "VASWANI"

(2.) THE present Appeal is directed against the impugned judgment and order rendered in Criminal Case No. 543 of 2000 by the learned Judicial Magistrate First Class dated 8.1.2004 recording acquittal of Respondent No. 1/Original Accused for the offence under Section 138 of the Negotiable Instruments Act.

(3.) LEARNED Advocate Shri Amar D. Mithani has referred to the reasons recorded for the findings and conclusion recording acquittal and submitted that the court below has accepted the submissions with regard to the payment of cheque and other liability as well as the other aspects. However, as could be seen from the judgment, only on the basis of the judgment of the High Court, the acquittal is recorded. He submitted that as observed in the judgment of the High Court of Gujarat reported in : 2003 (3) GLR 2207 in case of Urban Co -operative Credit Society v. State of Gujarat that the cheque must be drawn on an account maintained by the drawer. He submitted that on the basis of this judgment it has been observed that the date on which the cheque was drawn on 20.10.1999 the account was already closed on 28.9.1999 and therefore the cheque was not drawn on an account which was operational or maintained. Learned Advocate Shri Amar D. Mithani submitted that this judgment has been held to be per incuriam by subsequent judgment of High Court reported in : 2005 (1) GLR 638 in case of Hashmikant m. Sheth v. State of Gujarat & Anr. He pointedly referred to the observations made in this judgment and submitted that it has been observed that the judgment of the Hon'ble High Court reported in case of Urban Cooperative Credit Society v. State of Gujarat (supra) is not a good law. He also referred to the background of the facts and submitted that the court below has accepted the version of the complainant in all count and only relying on the aforesaid judgment it has not been held to be good law, acquittal is recorded.