Gujarat High Court Case Information System Print CR.MA/12285/2007 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC. APPLICATION No.12285 of 2007 [ENTITY]) - Applicant Versus [ENTITY] & ORS. - Opponents Appearance : MR TS NANAVATI for Applicant. MR [ENTITY] for Opponent No.1. MR [ENTITY] for Opponent No.2. MR [ENTITY], APP for Opponent No.3. CORAM : HONOURABLE MR. JUSTICE [ENTITY] Date : 04/03/2008 ORAL ORDER
1. Heard the learned advocates for the parties.
2. The applicant advanced financial assistance to the opponents-accused for their business purpose. The opponents-accused gave cheque, but the same was returned dishonoured by the bank with an endorsement 'account closed'. Therefore, notice of demand under [SECTION] of the [ACT] was served to the opponents-accused, but no reply was given. Therefore, the prosecution was launched. On conclusion of the trial, the opponents-accused have been acquitted by the learned Metropolitan Magistrate, Ahmedabad.
3. Being aggrieved by the said decision, the applicant has preferred present application seeking leave to appeal.
4. Mr.[ENTITY], learned advocate for the applicant, has mainly contended that in view of the decisions reported in [PRECEDENT] and [PRECEDENT], the judgment relied upon by the trial Court for acquitting the opponents has been held to be per incuriam and, therefore, the learned trial Judge has committed error in passing the impugned order.
5. Mr.[ENTITY], learned advocate for the opponent No.2, has made submissions from the averments made in the complaint and the copy of evidence adduced before the trial Court and submitted that the trial Court was justified in passing the impugned judgment with regard to the liability qua opponent No.2. He has relied upon the decisions of the Hon'ble Supreme Court reported in (1) [PRECEDENT]; (2) [PRECEDENT]; and, (3) [PRECEDENT] and submitted that at least, leave to appeal cannot be granted qua opponent No.2.
6. It appears from the impugned judgment that the learned Metropolitan Magistrate relying upon the decision in [PRECEDENT] acquitted the opponents for the offence punishable under [SECTION] of the [ACT] as the cheque was dishonoured with the endorsement 'account closed' on the bank cheque return memo. It also appears from the decisions referred to by the learned advocate for the applicant that the judgment relied by the learned Magistrate has been held to be per incuriam.
7. In the decision of NEPC Micon Limited & Ors.(supra), the Hon'ble Apex Court held that return of cheque by the bank with the endorsement 'account closed' is an offence by drawer of cheque as envisaged in [SECTION] of the [ACT]. In the decision of [PRECEDENT] (supra), this Court following the decision of the Supreme Court in NEPC Micon Limited & Ors.(supra) held in paragraph 27 as under:
?S27. Accordingly, it is held that the decision of the learned Single Judge in the case of [PRECEDENT] (supra) is judgment per incuriam and has no value as a binding precedent.
8. In my view, at this stage, the Court is not required to minutely scrutinize the evidence and give finding with regard to the evidence adduced before the Court. The opponent No.2 has a right to oppose the appeal by making the submissions made at this stage. Therefore, in view of the fact that the learned trial Magistrate has passed the impugned judgment relying upon the decision, which is held to be per incuriam, in my opinion, leave is required to be granted to the applicant.
9. In the result, leave to appeal is granted. The application stands disposed of accordingly. Notice discharged.
[Bankim N. Mehta, J.] Rajendra