Sunday, 10 January 2021

Whether appellate court can direct remand of the cheque dishonour case if there is the intermingling of documents?

 On going through the aforesaid factual scenario, it

appears that since the proceedings before the same Judge and

statutory notices as well as cheques and other documentary

evidence alleged to have been intermingled due to which they

were found to be mismatching with the pleadings, but the

learned Magistrate could have afforded reasonable opportunity

of interchanging the statutory notices as well as cheques in the

complaint so as to match with the factual scenario that was

merely a clerical mistake committed on behalf of learned

advocate for the complainant which has rendered into grave

prejudice as well as injustice to the complainant which

deserves to be remanded with a liberty to the appellantoriginal

complainant to give an opportunity of interchanging

statutory notices and cheques and correcting the records of

respective cases.

7. In the result, the appeals are hereby allowed. The

impugned Judgment and order dated 02.04.2018 rendered by

the learned 4th Additional Chief Judicial Magistrate, Anand in

two different Criminal Cases being Criminal Case No.1282 of

2017 and Criminal Case No.1283 of 2017, acquitting the

respondent-accused, is hereby quashed and set aside. The

matters are remanded to the learned trial Court to afford a

reasonable opportunity of interchanging the documentary

evidence as well as to prove the license of the appellant for the

year 2017 which is already on record and thereafter, after

affording reasonable opportunity of hearing, the learned trial

Court shall decide the matters afresh. 

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 2062 of 2018

With

R/CRIMINAL APPEAL NO. 2065 of 2018


DILIPBHAI BHAGWANDAS AASHWANI PROPRIETOR PAPPU FINANCE  Vs  STATE OF GUJARAT 


CORAM: MR.JUSTICE R.P.DHOLARIA

Date : 04/12/2019


1. The aforementioned two appeals have been preferred by

the appellant under Section 378 of the Criminal Procedure

Code against the judgment and order dated 02.04.2018

rendered by the learned 4th Additional Chief Judicial Magistrate,

Anand in two different Criminal Cases being Criminal Case

No.1282 of 2017 and Criminal Case No.1283 of 2017

respectively, whereby the present respondent no.2-original

accused in both the Criminal Cases was acquitted for the

offence punishable under Sections 138 and 142 of The

Negotiable Instruments Act, 1981 (hereinafter referred to as

“N.I. Act” for short).

2. The brief facts of the case are that the appellant-original

complainant is involved in the business of finance/money

lending in the name and style of “Pappu Finance” and he is

holding valid license for engaging in the said business. The

respondent no.2-original accused is known to the complainant

since many years due to business relations with him. The

accused is doing business as Road Contractor and therefore,

whenever he requires money, the accused used to borrow

money from the complainant. The complainant used to pay

money to the accused on interest and the accused used to

repay the said amount with interest and the said business

relation continued between the complainant and the accused.

The respondent no.2-accused was in need of money for the

purpose of his business and therefore, the complainant lent

Rs.6 lakhs by cheque for a period of six to seven months and

for due discharge of legal liability, two different cheques were

issued in favour of the complainant which came to be

dishonoured and therefore, the complaint came to be filed

under Section 138 of the N.I. Act in the Court of learned Chief

Judicial Magistrate, Anand being Criminal Case No.1282 of

2017. That after issuance of summons to the respondent no.2-

accused, plea was recorded and thereafter, evidence of

complainant was recorded. That after completion of further

statement of the accused under Section 313 of Cr.P.C., the

accused had not shown any willingness to examine any

witness on oath nor any evidence was produced by the

accused to rebut the presumption which was in favour of the

complainant. However, the learned Magistrate acquitted the

respondent no.2-original accused.

3. Ms. S.M. Ahuja, learned advocate for the appellant

submits that there were two different proceedings between the

same parties and due to inadvertent mistake on the part of

learned advocate who was appearing for the appellant-original

complainant before the learned Magistrate of intermingling

statutory notice as well as cheques and therefore, it was not

matching with the pleadings as well as without appreciating

the evidence that though in the year 2017, the appellant had

availed license for carrying out business of lending money, the

learned Magistrate rendered the judgment of acquittal.

4. Though rule is served, the respondent has chosen not to

appear before this Court.

5. Having heard Ms. S.M. Ahuja, learned advocate for the

appellant and Ms. Chetna M. Shah, learned APP for the

respondent-State, the only question arises for determination of

this Court is as to whether when the two separate proceedings

between the same parties were being conducted by the same

learned Judge, in that event, due to intermingling of the

statutory notices as well as cheques which were mismatching

to the respective proceedings, but upon joint perusal of both

the complaints, it could have been tallied which has not been

done so far by the learned trial Court or the learned trial Court

has not even afforded reasonable opportunity of interchanging

the statutory notices as well as cheques, in that case, in order

to comply with the principles of natural justice, the matter is

required to be remanded or not.

6. On going through the aforesaid factual scenario, it

appears that since the proceedings before the same Judge and

statutory notices as well as cheques and other documentary

evidence alleged to have been intermingled due to which they

were found to be mismatching with the pleadings, but the

learned Magistrate could have afforded reasonable opportunity

of interchanging the statutory notices as well as cheques in the

complaint so as to match with the factual scenario that was

merely a clerical mistake committed on behalf of learned

advocate for the complainant which has rendered into grave

prejudice as well as injustice to the complainant which

deserves to be remanded with a liberty to the appellantoriginal

complainant to give an opportunity of interchanging

statutory notices and cheques and correcting the records of

respective cases.

7. In the result, the appeals are hereby allowed. The

impugned Judgment and order dated 02.04.2018 rendered by

the learned 4th Additional Chief Judicial Magistrate, Anand in

two different Criminal Cases being Criminal Case No.1282 of

2017 and Criminal Case No.1283 of 2017, acquitting the

respondent-accused, is hereby quashed and set aside. The

matters are remanded to the learned trial Court to afford a

reasonable opportunity of interchanging the documentary

evidence as well as to prove the license of the appellant for the

year 2017 which is already on record and thereafter, after

affording reasonable opportunity of hearing, the learned trial

Court shall decide the matters afresh. Record and Proceedings

be sent back to the trial Court concerned forthwith. Direct

service is permitted.

(R.P.DHOLARIA, J)


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