Gujarat High Court: R.P. Dholaria, J., allowed an appeal which was filed in order to decide whether a matter can be remanded in order to comply with the principles of natural justice.
The appellant-original complainant was involved in the business of finance/money lending in the name and style of “Pappu Finance” and he was holding a valid license for engaging in the said business. The respondent 2-original accused was known to the complainant since many years due to business relations with him and accused was doing business as Road Contractor and therefore, whenever he required money, the accused used to borrow money from the complainant. Once, the respondent 2-accused was in need of money for the purpose of his business and therefore, the complainant lent Rs 6 lakhs by cheque for a period of six to seven months and for the due discharge of legal liability, two different cheques were issued in favour of the complainant which came to be dishonoured therefore, the complaint came to be filed under Section 138 of the N.I. Act. The counsel for the appellant, S.M. Ahuja submitted that there were two different proceedings between the same parties and due to inadvertent mistake on the part of an advocate who was appearing for the appellant-original complainant before the Magistrate of intermingling statutory notice as well as cheques and therefore, it was not matching with the pleadings as well as without appreciating the evidence that though in the year 2017, the appellant had availed license for carrying out business of lending money, the Magistrate rendered the judgment of acquittal.
The issue before the Court was that whether when the two separate proceedings between the same parties were being conducted by the same Judge, in that event, due to intermingling of the statutory notices as well as cheques which were mismatching to the respective proceedings, but upon joint perusal of both the complaints, it could have been tallied which had not been done so far by the trial Court or the trial Court had not even afforded reasonable opportunity of interchanging the statutory notices as well as cheques, in that case, in order to comply with the principles of natural justice, the matter was required to be remanded or not.
The Court while allowing the appeal explained that since the proceedings before the same Judge and statutory notices as well as cheques and other documentary evidence alleged to have been intermingled due to which they were found to be mismatching with the pleadings, but the Magistrate could have afforded reasonable opportunity of interchanging the statutory notices as well as cheques in the complaint so as to match with the factual scenario that was merely a clerical mistake committed on behalf of advocate for the complainant which had rendered into grave prejudice as well as injustice to the complainant which deserved to be remanded with a liberty to the appellant original complainant to give an opportunity of interchanging statutory notices and cheques and correcting the records of respective cases.
[Dilipbhai Bhagwandas Aashwani Proprietor Pappu Finance v. State of Gujarat,2019 SCC OnLine Guj 6621, decided on 04-12-2019]
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