The appellant, original complainant, has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgement and order of acquittal passed by learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Gondal at Dhoraji on 17.11.2007 in Criminal Appeal No. 18 of 2007 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short). 2. The complainant filed complaint under Section 138 of the Act against the respondent accused and his wife alleging that in all amount of Rs. 2,36,000/- was advanced to the respondent accused who agave cheques for repayment of the said amount. However, on presentation, the cheques returned unpaid on account of insufficient funds. Therefore, notice was served to the accused but the accused gave false and elusive reply and did not pay the unpaid amount of the cheques. Therefore, complaint in the Court of learned Judicial Magistrate First Class at Dhoraji was filed against the respondent accused and it was registered as Criminal Case No. 233 of 2005. The trial Court after recording evidence, convicted the respondent accused but acquitted his wife Sherbanu Ali Mohammed Aghadi. Therefore, the convict preferred appeal No. 18 of 2007 in the Court of learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Gondal at Dhoraji. Learned lower appellate Judge after hearing learned advocates for the parties by the impugned judgement allowed the appeal and set aside the conviction passed by the trial Court. Being aggrieved by the said decision, the complainant has preferred this appeal.
3. I have heard learned advocate Ms. Meghna Patel for learned advocate Mr. Ashish Dagli for the appellant, learned advocate Mr. Majmudar for the respondent accused and learned A.P.P. Ms. C.M. Shah for the respondent State at length and in great detail. I have also perused the record and proceedings of the lower Court.
4. Learned advocate Ms. Meghna Patel submitted that the lower appellate Court did not assign cogent and convincing reasons for setting aside the conviction. She also submitted that the lower appellate Court did not consider the evidence produced before learned trial Court and by slipshod judgement set aside the conviction. Therefore, the impugned judgement is required to be set aside.
5. Learned advocate Mr. Majmudar for the respondent accused submitted that the lower appellate Court has after discussing the evidence, reached the conclusion that the trial Court was not justified in convicting the accused. He also submitted that the lower appellate Court has assigned convincing reasons for setting aside the conviction and therefore no interference is warranted in the impugned judgement and the appeal is required to be dismissed.
6. It appears from the impugned judgement that the lower appellate Court has except narrating evidence of the prosecution witness, not assigned for what reason he does not agree with the conviction recorded by the trial Court. Learned lower appellate Judge has in the impugned judgement only observed that the reasons assigned by the trial Court are not satisfactory and are contrary to the record of the case. However, learned appellate Judge has not recorded as to how the findings of the trial Court are contrary to the record of the case. In view of this, the judgement of the lower appellate Judge cannot sustain and the impugned judgement passed by the lower appellate Judge is required to be set aside and the matter is required to be remanded to the lower appellate Court to decide afresh in accordance with law after hearing learned advocates for the parties.
7. In view of above, the appeal is allowed. The impugned judgement and order of acquittal passed by learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Gondal at Dhoraji in Criminal Appeal No. 18 of 2007 on 17.11.2007 is set aside and the case is remanded to the lower appellate Court to decide it afresh in accordance with law after giving opportunity of hearing to learned advocates for the parties.
8. It is stated that the lower appellate Court had suspended the order of sentence imposed upon the respondent accused and released him on bail during pendency of appeal but the respondent accused was not released as he could not furnish bail. In view of the fact that the matter is remanded to the lower appellate Court to decide afresh, the order of sentence passed by the trial Court shall remain suspended during the pendency of appeal before appellate Court and the respondent accused shall surrender before the lower appellate Court on 19.3.2012 and on his surrender the lower appellate Court shall suspend the order of sentence passed by the trial Court and shall release the respondent accused on his personal bond in the sum of Rs. 2,000/- till final disposal of the appeal before it. It is also made clear that the parties are at liberty to raise all the legal contentions available to them and the lower appellate Court shall decide the appeal afresh without being influenced by this order.
(BANKIM N. MEHTA, J) (pkn)