AKSHAY CHANDUBHAI KACHHIA Vs. RUTUGNABHAI ARVINDBHAI TRIVEDI

JUDGEMENT

(1.) BEING aggrieved and dissatisfied with the impugned judgment and order delivered by learned Metropolitan Magistrate, Court No.16, Ahmedabad ('ld Magistrate', for short) on dated 30.12.1997 in Criminal Case No.1306/1995, the original complainant Shri Akshaybhai Chandubhai Kachhia preferred this appeal. By virtue of the impugned judgment, the ld.Magistrate was pleased to acquit the respondent no.1 herein, who was original accused in the aforesaid Criminal Case, for the offence punishable under section 138 of the Negotiable Instruments Act.

(2.) IT is the case of the complainant that the complainant and the accused had business transactions regarding purchase of shares. The complainant was doing business in the name of Akshay Consultancy for selling and purchasing shares. That the accused used to purchase shares from the complainant. That even the father of the accused named - Arvindbhai and the father of the complainant named - Chandulal were serving together and were in good terms. That the accused purchased shares from the complainant worth Rs.54,900/ -. That whenever the accused used to purchase shares from the complainant, the accused used to make payment by cheques. That for the purchase of shares worth Rs.54,900/ -, the accused had issued a cheque dated 20.09.1994 of Rs.34,750/ -. That when the complainant tendered the cheque in his bank on dated 10.3.1995, the same was dishonored with the endorsement of the bank - "funds insufficient". That thereafter, on dated 16.3.1995, the complainant through his advocate issued notice to the accused. In turn, the accused replied the said notice on dated 30.03.1995 and again the complainant on dated 5.4.1995 replied to the reply of the notice given by the accused to the original notice of the complainant. Then, the complainant filed private complaint against the accused for the offence punishable under section 138 of the Negotiable Instruments Act ('Act', for short). The ld.Magistrate was pleased to issue summons against the accused for the offence alleged in the complaint. The accused appeared and did not plead guilty, and in the result the ld.Magistrate recorded the evidence adduced by the complainant. The deposition of complainant Akshaybhai was recorded at Exh.3. The complainant examined witness Hardikbhai Shah at Exh.11 and witness Kushroo Nariman at Exh.12. No more witnesses were examined by the complainant. Required documentary evidence was produced in the case. After the complainant side concluded its evidence, the ld.Magistrate recorded the further statement of the accused under section 313 of the Code of Criminal Procedure ('Code', for short). The accused generally denied all the allegations leveled against him by the complainant. However, in the further statement the accused stated that 1000 shares at the rate of Rs.34.75 ps. were purchased, and accordingly a cheque was issued. However, the complainant telephoned to the father of the accused and stated about the commission to the tune of Rs.1,500/ -, and, therefore, the said amount came to be deducted and the second cheque was issued on dated 20.09.1994, and said second cheque was tendered by the complainant in his bank and had received the amount. That the first cheque was not returned back to the accused by the complainant and the false complaint was filed. The ld.Magistrate appreciated the evidence on record, and after considering the arguments advanced on behalf of both the parties, the ld.Magistrate delivered the impugned judgment on dated 30.12.1997 and was pleased to acquit the accused for the offence punishable under section 138 of the Act.

(3.) ON behalf of the appellant original complainant, ld.Sr.Advocate Shri Y.S.Lakhani submitted that the ld.Magistrate erred in delivering the impugned judgment and thereby acquitting the accused. That the impugned judgment delivered by the ld.Magistrate is contrary to law and evidence on record. That through the oral and documentary evidence produced by the prosecution, it is proved beyond reasonable doubt that the accused had delivered a cheque of Rs.34,750/ - on dated 20.09.1994 and the complainant had tendered the said cheque in his bank on dated 10.03.1995 and the same was returned with the endorsement of insufficient fund by the concerned bank, and accordingly, the cheque was dishonored. That therefore, the complainant successfully proved all the required ingredients of Section 138 of the Act. That the accused came forward with false defence and concocting story of issuance of second cheque of Rs.33,250/ - after deducting Rs.1,500/ - by way of commission. That in fact, the complainant successfully proved its case with respect to the cheque of Rs.34,750/ -. The so called second cheque of Rs.33,250/ - has nothing to do with the present share transaction. That despite this, the ld.Magistrate erred in not accepting the evidence adduced by the prosecution, and on the contrary, accepted the defence raised by the accused. That if at all, it was an understanding between the parties that the first cheque was required to be returned by the complainant to the accused, then the accused would not have sat silent and would have immediately issued notice to the complainant requesting him to return the cheque. That nothing whatsoever was done. Therefore, it was submitted that the appeal be allowed and the impugned judgment delivered by the ld.Magistrate be set -aside and respondent no.1 original accused be convicted for the offence punishable under section 138 of the Act and be sentenced appropriately in accordance with law.