Criminal Appeal No. 2221 of 2014 (Arising out of Special Leave Petition (Crl.) No. 5623 of 2012), Criminal Appeal No. 2222 of 2014 (Arising out of Special Leave Petition (Crl.) No. 3332 of 2012) and Criminal Appeal No. 2223 of 2014 (Arising out of Special Leave Petition (Crl.) No. 734 of 2013). Case: 1. J.V. Baharuni, 2. Giriraj Proteins Pvt. Ltd., 3. Baldevbhai Ramjibhai Patel Vs 1. State of Gujarat, 2. D.M. Finance, 3. Vishnubhai Hargovindas Patel. Supreme Court (India)
| Case Number | Criminal Appeal No. 2221 of 2014 (Arising out of Special Leave Petition (Crl.) No. 5623 of 2012), Criminal Appeal No. 2222 of 2014 (Arising out of Special Leave Petition (Crl.) No. 3332 of 2012) and Criminal Appeal No. 2223 of 2014 (Arising out of Special Leave Petition (Crl.) No. 734 of 2013) |
| Counsel | For Appellant: Sushil Karanjakar, Aniruddha P. Mayee, Charudatta Mahindrakar, A. Selvin Raja and Haresh Raichura, Advs. and For Respondents: Kunal Verma, Hemantika Wahi, Preeti Bhardwaj, Puja Singh, Vimal Chandra S. Dave, Chinmoy Khaladkar, Padhyaru and Sayooj Mohandas M., Advs. |
| Judges | Ranjana Prakash Desai and N.V. Ramana, JJ. |
| Issue | Negotiable Instruments Act, 1881 - Sections 138, 139, 140, 141, 142, 143, 143(1), 143(2), 144, 145, 145(2), 146, 147; Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002; Evidence Act; Code of Criminal Procedure (CrPC) - Sections 251, 254, 255(1), 260, 262, 262(1), 263, 264, 265, 273, 313, 326, 326(1), 326(2), 326(3), 378,... |
| Citation | 2014 (4) RCR 763 (Civil), 2014 (12) SCALE 200 |
| Judgement Date | October 16, 2014 |
| Court | Supreme Court (India) |
Judgment:
N.V. Ramana, J.
1. Leave granted.
2. The undisputed facts of the appeal arising out of S.L.P. (Crl.) No. 5623 of 2012 are that Appellant No. 2 is the owner of Appellant No. 1 Company. The Respondent No. 2, who is in the business of manufacture, process and marketing of petroleum products, has a 'Company Owned Company Operated' retail outlet at Village Gadu, Maliya Hatina Taluq, District Junagadh, Gujarat. Appellants entered into a contract with the Respondent No. 2 Corporation for performing various contractual jobs. As per the terms of the contract, the Appellants were required to undertake the contracted jobs and to deposit the money out of sale proceeds on a daily basis in the State Bank of India, Veraval Branch. The business dealings between the parties were going on since 1996 and in terms of the contract Appellants furnished to the Respondent No. 2, two Cheques bearing Nos. 884572 and 884574, dated 24th June, 2000 for Rs. 10 lakhs and Rs. 25 lakhs, respectively. When the cheques were presented for realization, they bounced with the endorsement "not arranged for". Hence, Respondent No. 2 initiated criminal proceedings Under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act') against the Appellants and filed Criminal Complaint No. 2131 of 2000.
3. Before the Trial Court it was argued on behalf of Respondent No. 2--Corporation that the cheques in question were issued by the Appellants to discharge their part liability for clearing the dues whereas the case of the Appellants was that there were no dues payable to the Respondent Corporation and the Cheques were taken by the complainant--Corporation as 'guarantee' and misused the same.
4. The Trial Court acquitted the Appellant No. 2--accused Under Section 255(1) of the Code of Criminal Procedure (Code of Criminal Procedure.) holding that considering the facts and circumstances and taking into account the evidence and the settled principles of law, complainant has failed to prove the charge against the accused and under the circumstances, it is not possible to hold the accused guilty for the offence punishable Under Section 138 of the Act.
5. Aggrieved by the judgment of the learned Trial Judge, the Respondent No. 2--complainant challenged it in an appeal before the High Court of Gujarat Under Section 378, Code of Criminal Procedure. It was contended before the High Court on behalf of the complainant--Corporation that the evidence was recorded by one Magistrate and relying on the same evidence, his successor Magistrate delivered the judgment. Therefore, the trial was vitiated as the case was tried 'summarily' Under Section 143 of the N.I. Act, and the successor Magistrate could not have relied upon the evidence recorded by his predecessor. Placing reliance on this Court's decision in Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal AIR 2011 SC 3076, the complainant submitted that the matter be remanded to the Trial Court for a de novo trial.
6. The High Court observed that the learned Magistrate who delivered the judgment was not in a position to appreciate the evidence properly and decide the matter effectively to do substantial justice as he formed the opinion relying upon the evidence recorded by his predecessor. It, therefore, caused serious prejudice to the complainant as an order of acquittal was passed. Hence, the High Court allowed the appeal and remanded the matter to the Trial Court for a fresh trial in accordance with law after giving opportunity to the parties.
7. Dissatisfied with the High Court's judgment, the accused-- Appellants assailed it in appeal before this Court. On 6th August, 2012, this Court while issuing notice, stayed proceedings going on before the learned Magistrate in pursuance of the remand order passed by the High Court.
8. The brief facts of S.L.P. (Crl.) No. 3332 of 2012 are that at the relevant time, the complainant--Jayesh Thakker was the Manager of Respondent No. 1 firm (D.M. Finance). Appellant Nos. 2 to 5 were Directors of the Appellant No. 1 Company which runs the business of proteins. They entered into a transaction with the Respondent No. 1 firm for purchase of castor stocks. It is alleged that the Appellant Nos. 2 to 5 had purchased the stock of castor seeds and as per the statement of account, the Appellants paid only Rs. 28,66,677/- and an amount of Rs. 41,89,364/- was outstanding. The Appellants, therefore, issued three cheques bearing No. 585977 dated 27.6.2001 for Rs. 3,00,000/, cheque No. 585979 for Rs. 2,00,000/- and cheque No. 585980 for Rs. 2,00,000/- drawn on Laxmi Vilas Bank Ltd.., Gondal Road, Rajkot towards part payment. When these cheques were presented for realization, they were dishonoured by the Bank with endorsement "insufficient funds". Respondent No. 1 issued notice dated 10.7.2001 to the Appellants and upon their failure to obey the notice, he filed a Complaint Under Section 138 of the N.I. Act.
9. Before the Trial Court, the Appellants denied having committed the offence and the complainant has adduced evidence. By an order dated 30.5.2009 the Trial Court acquitted the accused--Appellants. The Respondent No. 1-- complainant challenged the acquittal order in an appeal before the High Court of Gujarat Under Section 378, Code of Criminal Procedure.
10. It was mainly contended by the complainant before the High Court that the Trial Court committed illegality as the offence Under Section 138 of NI Act has to be tried in summary manner and a part of evidence was recorded by one Magistrate and remaining part of evidence was recorded by a successor Magistrate who delivered the judgment. The High Court, placing reliance on Nitinbhai remanded the matter to the Trial Court for a de novo trial. Aggrieved by the remand order passed by the High Court, the accused-- Appellants preferred the present appeal.
11. This Court, by an order dated 27th August, 2012 issued notice and stayed proceedings before the learned Magistrate in pursuance of the remand order passed by the High Court. This Court also directed to tag on this matter with SLP (Crl.) No. 5623 of 2012.
12. As regards the appeal arising out of S.L.P. (Crl.) No. 734 of 2013, the facts in a nutshell are that the Respondent No. 1-- complainant was the owner of Ranjan High School in Bapunagar, Ahmedabad and the accused--Appellant was engaged with the activities of the school. The accused--Appellant took hand loan of Rs. 3,57,000/- from the Respondent No. 1. To fulfil his obligation, the Appellant issued a cheque No. 481551 dated 25.8.1998 for Rs. 2,97,000/- and another cheque No. 481552 dated 25.10.1998 for Rs. 60,000/- drawn on Gandhinagar Nagrik Co-operative Bank, Sachivalaya Branch, Gandhinagar. Upon presentation, the cheques were returned by the bank unpaid on account of insufficient funds. A notice was served upon the accused--Appellant on 17.11.1998 demanding payment and upon his failure to comply with the notice, the Respondent No. 1--complainant filed criminal complaint before the Trial Court.
13. Accused pleaded not guilty and after conducting the trial. The Trial Court by an order dated 7.8.2009 acquitted the Appellant--accused holding him innocent as per Section 255(1) of the Code of Criminal Procedure Aggrieved thereby, the Respondent No. 1 preferred appeal Under Section 378 of Code of Criminal Procedure before the High Court. The High Court, by the impugned judgment, observed that the case was transferred from one Metropolitan Magistrate to another and the Magistrate who recorded the evidence did not pass judgment. Placing reliance on Nitinbhai the High Court allowed the appeal and remanded the matter to the Trial Court for de novo trial. Against the order passed by the High Court remanding the matter for de novo trial, the accused--Appellant preferred the present appeal.
14. This Court, by an order dated 14th January, 2013 issued notice and stayed proceedings before the learned Magistrate in pursuance of the remand order passed by the High Court. The matter was also directed to be tagged with SLP (Crl.) No. 5623 of 2012.
15. That is how all these appeals are placed before us. In all three matters, the rival contentions of the parties are more or less similar and as the issue involved is one and the same, they are being dealt with and disposed of commonly.
16. Learned Counsel for the Appellants contended that even though the learned Magistrate who rendered the judgment was not the same who recorded the evidence, the fact remains that the order of acquittal was recorded only after appreciating the entire evidence in its proper perspective and after giving an opportunity to both sides to present their case. Not only that, the learned Magistrate, before delivering the judgment, has given ample opportunity to the parties to bring on record their evidence in detail. The learned Magistrate analyzed the entire oral as well as documentary evidence. After taking into account all material aspects, the Trial Court framed the issues and passed reasoned order arriving at a conclusion that no iota of evidence is produced by the complainant to show that any amount was due and recoverable from the accused and the complainant has failed to prove that the Cheques in question were issued by the accused towards a legally enforceable debt. While passing the order of acquittal, the Trial Court also considered the settled principles of law laid down by this Court and came to the conclusion that the accused is not guilty of the offence Under Section 138 of the N.I. Act. Therefore, in view of the exercise undertaken by the learned Judge, the trial in question could not be termed as a 'summary trial' and there is no impropriety involved in the judgment of the Trial Court. The High Court, while allowing the appeal of the complainant by setting aside the order of acquittal and directing for a de novo trial, failed to take into consideration the prejudice caused to the accused and further failed to follow the...
To continue reading
Request your trial