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Judgment
R.P.Dholaria, J
The appellant has preferred this appeal under Section 378 of the Criminal Procedure Code against the judgment and order dated 14.08.2014
rendered by the learned 2nd Additional Chief Judicial Magistrate, Mahesana in Criminal Case No.11 of 2012, whereby the present respondent no.2-
original accused was acquitted for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as
“N.I. Act†for short).
The brief facts of the case is that the appellant-org.complainant was previously serving with O.N.G.C and came to be retired in the year 1999,
whereas the respondent no.2-org.accused was a Contractor and there was a friendly relationship between them prior to 2002 and they also undertook
some business in partnership prior to 2002 and due to aforesaid long standing relationship, around in the year 2002, the respondent no.2-org.accused
borrowed Rs.8 lakhs from the appellant-org.complainant and also promised to pay at the earliest and thereafter, respondent-org.accused issued 13
different cheques in lieu of due discharge of liability. The aforesaid cheques alleged to have been issued in the month of February, March, April and
May-2011 for due discharge of legal obligation alleged to have been created in the year 2002. The above mentioned cheques were presented before
the bank and the same were returned back with endorsement that the “account is closedâ€. Thereafter, the complainant through his advocate
issued notice, but still the accused did not repay the said amount to the complainant. On these facts, a complaint was filed by the appellant-
org.complainant before learned 2nd Additional Chief Judicial Magistrate, Mahesana under Section 138 of N.I. Act. Thereafter, summons was issued
and served upon the respondent no.2. The plea of respondent no.2-org.accused was recorded at Exh.5. The accused pleaded not guilty to the charge
and claimed to be tried.
After filing closing purshis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was
recorded. The accused person has denied the case of the prosecution and submitted that a false case is filed against him.
At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the
respondent-accused.
Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 14.08.2014 rendered by the learned 2nd Additional Chief
Judicial Magistrate, Mahesana in Criminal Case No.11 of 2012, the appellant has preferred the present appeal before this Court.
After registering the aforesaid private complaint, the learned trial court recorded the evidence and after appreciating the evidence, recorded the
finding that out of 13 cheques, 10 cheques were issued by Naresh Trading Company â€" a partnership firm, which came to be signed by the
respondent no.2-org.accused as a partner and 3 cheques were not bearing such stamp of partnership firm.
In view of aforesaid scenario, the learned trial court relying upon the celebrated decision of Hon'ble Supreme Court reported in (2012) 5 SCC 661 in
the case of Aneeta Hada v. Godfather Travels & Tours Pvt. Ltd. for want of impleading the partnership firm as well as other partners, did not believe
the case of prosecution. The learned trial court also recorded the finding as regards legally enforceable dues which came to be created in the year
2002, that no details are forthcoming out as to how the appellant has lent Rs.8 lakhs to the respondent no.2-org.accused.
This Court has heard Mr. P.V. Patadiya, learned advocate for the appellant, Ms. Hansa Punani, learned APP for the respondent no.1-State and
Mr. Kamlesh Kotai, learned advocate for respondent no.2-org.accused at length.
Mr. P.V. Patadiya, learned advocate for the appellant strenuously urged before this Court that for the debt of Rs.8 lakhs, different cheques came to
be issued in the year 2002 which should be considered to be an acknowledgment and the debt should be believed to be legally enforceable and within
the period of limitation. He further pointed out that since the cheques were issued and no other evidence is led by the respondent-accused, the learned
trial court wrongfully recorded the acquittal which requires to be reversed.
This Court has minutely gone through the records and proceedings, the deposition of appellant-org.complainant, documentary evidence and other
aspects of the case in detail.
Indisputably, the transaction in question took place prior to 2002 as regards to lending money to the respondent no.2-org.accused. Though the
appellant-org.complainant has not explained as to when and how the cheques have been handed over to him, but the records and proceedings clearly
indicates from the mouth of bank official who came to be examined by the appellant-org.complainant himself wherein it is revealed that the cheque-
books in question came to be issued in the year 2001 and 2003, though he deposed that one cheque-book came to be issued in the year 2009, but the
cheques which came to be presented and came to be dishonored were not issued from the cheque-books issued by the bank in the year 2009.
Indisputably, the alleged transaction of borrowing money took place in the year 2002 and as per the provisions of Limitation Act, the period of
limitation expires in the year 2005, though the cheques came to be presented in the year 2011 for about six years after the period of limitation without
explaining anything on the aspect of period of limitation.
It is an undisputed fact that the appellant-org.complainant-Varisali Safi Muhhmadkhan and the respondent no.2-org.accused-Nareshkumar
Ramniklal Doshi entered into alleged borrowing transaction of Rs.8 lakhs in personal capacity. Surprisingly, the cheques which came to be returned
with endorsement of “account closed†were not issued by Naresh Trading Companyâ€" a partnership firm. Indisputably, the appellant-
org.complainant had no dealing with Naresh Trading Company and therefore, the appellant-org.complainant was not at all entitled to enforce any
legally enforceable dues from the said partnership firm. On that count also, no criminal liability could be fastened either on the said partnership firm or
on any of the partners thereof and on that count also, the complaint fails. Another aspect is also emerging out from the records and proceedings that
though the complainant alleged to have lent such a huge amount in the year 2002, but in his cross-examination, he clearly admitted that he retired from
service in the year 1999 and he could not recollect as to when and in which month and which year, he had lent the money to the respondent no.2-
org.accused. Even the appellant could not recollect as to after how long period after getting retired, he lent the money to the respondent no.2-
org.accused. Therefore, as regards to aforesaid separate transactions, he failed to give any details thereof and on that count also, the appellant-
org.complainant failed to establish the transaction of advancing the amount to the respondent no.2-org.accused and on that count also, the appellant-
org.complainant failed to establish that the cheques were issued towards the due discharge of legally enforceable dues.
It is settled legal position that in an acquittal appeal, the Appellate Court is not required to re-write the Judgment or to give fresh reasonings when
the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full
agreement with the reasons given and findings recorded by the trial Court while acquitting the respondents-accused and adopting the said reasons as
well as the reasons aforesaid, in my view, the impugned Judgment is just, legal and proper and requires no interference by this Court at this stage. I do
not find any cogent reason to interfere with the impugned decision as it cannot be said to be either perverse or not borne out from the facts of the
case. The State has not been able to persuade this Court to take a different view in this matter. Hence, this appeal sans merit is required to be
dismissed.
In view of aforesaid nature of evidence and peculiar facts and circumstances of the case, the learned trial court has rightly acquitted the
respondent no.2-org.accused which calls for no interference and therefore, present appeal deserves to be dismissed.
In the result, the appeal is hereby dismissed. The impugned Judgment and order dated 14.08.2014 rendered by the learned 2nd Additional Chief
Judicial Magistrate, Mahesana in Criminal Case No.11 of 2012, acquitting the respondent no.2-accused, is hereby confirmed. Record and Proceedings
be sent back to the trial Court concerned forthwith. Bail and Bail bonds, if any, stand cancelled.