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KADIR ALAMKHAN HABIBKHAN Versus ABDUL AJIJ @ BANNEKHAN PATHAN AND 1

2017 (1) TMI 1112 - GUJARAT HIGH COURT

Order of acquittal - cheque returned with an endorsement of account closed - Held that:- From the document at Exh.39 to 51, it is not crystal clear that respondent-accused has taken amount on credit and therefore, on perusal of the documentary evidence, it appears that the learned trial Judge has rightly acquitted the present respondent No.1-accused from the charges levelled against him. - As minutely perused the oral and documentary evidence produced on record and also gone through the obse .....

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INSTRUMENT ACT) NO. 782 of 2015 - Dated:- 16-1-2017 - MR. Z.K.SAIYED, J. FOR THE APPLICANT : MR SANDIP M PATEL, ADVOCATE FOR THE RESPONDENT : MR SHUSHIL R SHUKLA, ADVOCATE, MS. MONALI BHATT, APP, ORAL ORDER 1. By way of present Criminal Revision Application, the applicant has prayed to quash and set aside the order of acquittal dated 30.10.2015 passed in Criminal Appeal No.108 of 2014 by the learned 12th Additional District Judge and further be pleased to confirm the judgment and order dated 22 .....

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that respondent-accused get the money from the present applicant for handy cash on credit sum amount of ₹ 1.20 lacs on 21.03.2006. He further submitted that after numbers of request and demand, the respondent-accused gave four cheques of Canara Bank of Baragen Branch being cheque No.359261 dated 10.08.2004 for ₹ 12,000/-, No.359262 dated 23.11.2006 for ₹ 11,000/-, No.359263 dated 06.01.2007 for ₹ 40,000/-and cheque No.359264 dated 17.03.2007 for ₹ 57,000/- by that .....

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pplicant that the applicant issued notice, however, the same was returned with endorsement that receiver was outside and respondent-accused did not pay the amount of ₹ 57,000/- which was demanded by notice dated 03.05.2007. Therefore, the applicant preferred criminal complaint under Section 138 of the NI Act before the learned Senior Civil Judge and Chief JMFC, Baroda. The learned trial Court vide order dated 22.09.2014, convicted the respondentaccused and sentence to undergo six months wi .....

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secutor for respondent No.2. 4. Mr. Patel, contended that the judgment and order of acquittal passed by the learned trial Court is absolutely illegal, unreasonable, perverse and against the law and evidence on record. He then contended that signature on the cheque is not in dispute and the amount given by the applicant to the respondent-accused as a partner. He then contended that the learned trial Judge has wrongly considered that legal dues and transactions are not proved beyond reasonable dou .....

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rial Judge in paras 17 to 19 and contended that learned trial Judge has rightly considered the cross-examination and oral version of the complainant. Further, from the document at Exh.39 to 51, it is not crystal clear that respondent-accused has taken amount on credit and therefore, on perusal of the documentary evidence, it appears that the learned trial Judge has rightly acquitted the present respondent No.1-accused from the charges levelled against him. 6. Ms. Monali Bhatt, learned APP for th .....

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nt during the cross examination, it is clearly proved that evidence in respect of list at exhibit no. 54 (exhibit no. 39 to 50) was in the possession of the complainant. It was not lost or missing. He has not stated in the complaint, notice and affidavit that there is a voucher in respect of lending of money on 21/03/2006. He has not stated that the money was given in instalment on different dates and facts contained in the documents from exhibit no. 39 to 50 have not been mentioned in the compl .....

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gure, etc. have been written with blue ink ball-pen. There is no change in the voucher of the said ink and these vouchers are of different dates in 2000, 2004, 2003 and 2004. But, it is clearly proved that same blue ink pen has been used to write in the said vouchers. The ink does not appear to be slight different. Looking to this, it clearly appears that vouchers were written on the same day. Though it is undisputed that vouchers were in the custody of the complainant, it has not been mentioned .....

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f the complainant that complainant has not produced any evidence in respect of lending of ₹ 1,20,000/- on 21/03/2006. It does not become clear that complainant received present cheque in respect of lending ₹ 57,000/- vide voucher at exhibit no. 50. The voucher at exhibit no. 50 is of 17/06/2004 and accused has not given cheque at exhibit no. 16 to the complainant towards the aforesaid amount. Looking to this, transaction mentioned in the complaint and voucher of exhibit no. 50 are di .....

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s to in whose presence, on which date and time, ₹ 1,20,000/- was lent to him. The source of income has not been produced. The complainant has not shown the said amount in the books of account or income tax. Under these circumstances, it is not proved that ₹ 1,20,000/- was lent. It is not proved from the evidence of the complainant that the accused legally owes ₹ 1,20,000/- to the complainant. 19) The complainant has admitted during his cross examination that accused gave ₹ .....

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nature is required to be given in partnership, if required. As discussed above, it is not proved that accused legally owes something to the complainant. It does not appear that aforesaid cheque was given towards legal liability. The Defence has succeeded in rebutting presumption through cross examination. The complainant has admitted most significant fact. When Defence has rebutted presumption through cross examination, Prosecution is required to prove its case beyond reasonable doubt without th .....

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. It is revealed in the present case that rebuttal of section 139 is done through cross examination. The complainant has not proved that he received the said cheque towards legal debt. Looking to the cheque of exhibit no. 16, the person issuing the said cheque has put signature in Hindi, whereas name, amount, figure and date are written in different ink in English. Under these circumstances, it is clearly proved that possibility of defence that the aforesaid cheque bearing signature was given bl .....

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