MANISHBHAI BHARATBHAI SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) RULE in Criminal Misc. Application No. 10043 of 2006 and in Criminal Misc. Application No. 3815 of 2005. Shri. M. A. Patel learned APP for the opponent No. 1 State and Shri. V. B. Patel learned Counsel for the opponents No. 2 to 5 waived service of rule. The rule was fixed forthwith with the consent of the learned Counsels of the respective parties. The applicant / original complainant has filed the Criminal Misc. Application No. 10617 of 2006 under Section 5 of the Limitation Act, seeking condonation of delay occurred in preferring Criminal Miscellaneous Application No. 10043 of 2006 seeking restoration of Criminal Miscellaneous Application No. 3815 of 2005 on the file as it stood dismissed for default. This Court [coram: S. R. Brahmbhatt, J] had issued rule in Criminal Misc. Application No. 10617 of 2006 on 3/11/2006, which was made returnable on 17/11/2006. Shri. V. B. Patel, learned counsel appeared for the private respondents/ original accused no. 2 to 5. He opposed the delay condonation application. It would be expedient to set out few facts leading to filing of this application. The applicant had to file the complaint which came to be registered as Criminal Case No. 1744 of 2003 in the court of learned Judicial Magistrate First Class Borsad against original accused no. 1 to 4 who are private respondents no. 2 to 5 herein above for offence punishable under section 138 of the Negotiable Instrument Act as the cheque of Rs. 11,50,000=00 allegedly issued by applicant complainant had not been honoured and the accused failed in making payment of the cheque amount to the complainant after receiving statutory notice for making payment within stipulated time. The court did not believe the case of the complainant and the JMFC Borsad acquitted the accused vide his order dated 10/03/2005 in Criminal Case no. 1744 of 2003. This complainant preferred Criminal Misc. Application No. 3815 of 2005 under section 378 (4) of the Code for seeking special leave to appeal with the appeal challenging the order of acquittal dated 10/03/2005 passed by learned JMFC Borsad in Criminal Case No. 1744 of 2003. This Court (Coram: C. K. Buch, J) passed the following order on 20/12/2005 in these proceedings. "the office objections to be removed on or before 12/1/2006 failing which the petition shall stand dismissed for default. " as the applicant could not remove the office objections of not mentioning of provisions of law, numbering the pages etc by 12/01/2006 the matter stood dismissed. The applicants filed the Criminal Miscellaneous Application No. 10043 of 2006 for recalling the said order and for restoring the matter on board. The applicant submitted that as the matters of M/s. NANAVATY ADVOCATES are not taken up by Hon"ble Mr. Justice C. K. Buch the order dated 20/12/2005 remained unnoticed and hence the matter came to be dismissed and delay occurred in preferring the restoration application being Criminal Application No. 10043 of 2006 in Criminal Miscellaneous Application No. 3815 of 2005. The Learned Counsels of the respective parties have submitted that the Court may hear the Counsels of the respective parties at length on the merits of the appeal on the basis of the relevant papers of Criminal Case no. 1744 of 2003 produced by them so as to put an end to all these applications and appeal itself at this stage. As the delay occurred in filing this application is explained the same deserves to be condoned. As the applicant has also shown grounds for restoration of the Criminal Application No. 3815 of 2005 the application no. 10043 of 2006 also deserves to be allowed and the Criminal Application No. 3815 of 2005 is restored to the file, and in view of the general consensus amongst the learned counsels of the respective parties that they be permitted to make submissions at length on the merits of the appeal itself, the Criminal Miscellaneous Application No. 3815 of 2005 seeking leave to appeal also deserves to be allowed. Accordingly these Criminal Miscellaneous Applications are allowed and all the matters are being disposed of by this common judgment and order. The Appellant - original complainant has preferred this appeal under section 378 (4) of the Code of Criminal Procedure, 1973 [hereinafter referred to as the 'code' for brevity] challenging the order of acquittal dated 10/3/2005 passed by learned JMFC, Borsad in Criminal Case No. 1744 of 2003 acquitting the respondents no. 2 to 5 / original accused of the charge of committing offence punishable under section 138 of the Negotiable Instrument Act, 1881 [hereinafter referred to as 'n. I. Act for short]. The brief facts leading to filing of this appeal deserve to be set out as under.

(2.) THE appellant, original complainant, was constrained to file the complaint in the court of learned JMFC, Borsad against the respondent No. 2 to 5, original accused, stating that he and his firm were engaged in money-lending business and knew the accused very well as they were having business relationship with him. The complainant alleged in the complaint that on 25/4/2003 the accused came to the complainant and borrowed Rs. 11,50,000=00 for development of their business. The accused issued cheque for the payment of the said amount of Rs. 11,50,000=00 bearing cheque No. 0232241 dated 5/05/2003 from their account No. 1423 maintained in Borsad Nagarik Sahkari Bank Ltd, Borsad. The accused assured the complainant that the payment against the cheque would be made on presenting the cheque in their bank. The complainant presented the cheque on 23/5/2003 in his bank i. e. Bank of Baroda which in turn presented the same to the Bank of the accused i. e. Borsad Nagrik Sahkari Bank at Borsad for realizing the cheque amount of Rs. 11,50,000=00. The Bank of the accused could not honour the cheque on account of insufficiency of funds in the account of the accused. The complainant received back the cheque along with memo indicating that the cheque was not honoured on account of insufficiency of funds in the account of the accused. The complainant therefore, issued notice through his advocate on 2/6/2003 by R. P. A. D. as well as Under Certificate of Posting. The complainant alleged that accused received the same and gave vague and evasive reply to their notice and did not pay the cheque amount within the statutory period. As the accused failed in making payment of the cheque amount of Rs. 11,50,000=00 to the complainant within stipulated time limit prescribed under the N. I. Act, they committed an offence punishable under section 138 of the N. I. Act and therefore, the complaint was lodged on 27/6/2003 in the court of learned JMFC, Borsad which came to be registered as Criminal Case No. 1744 of 2003.

(3.) THE appellant has challenged the order of acquittal dated 10/3/2005 in the present Criminal Appeal. As this Court has noted in its order dated 28/12/2006 in Cri. Misc. Application No. 10617 of 2006, Criminal Misc. Application No. 14000 of 2006 and in Cri. Misc. Application No. 3815 of 2005, the appeal was heard at length on merits and on the basis of papers produced by respective parties. As there was consensus between the parties that the entire appeal may be decided right at this stage on the basis of the record produced before this Court by the respective parties, the appeal is decided and disposed of along with Criminal miscellaneous applications by this common order.