Rakesh Natvarlal Desai Thro Poa Of ... vs State Of Gujarat

                                                                                   NEUTRAL CITATION




     R/CR.MA/7759/2022                                ORDER DATED: 25/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 7759 of 2022

                    In R/CRIMINAL APPEAL NO. 846 of 2022

                                       With
                         R/CRIMINAL APPEAL NO. 846 of 2022
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RAKESH NATVARLAL DESAI THRO POA OF SANGEETABEN PARIKSHIT
                         MEHTA
                         Versus
                   STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1
KARTIKKUMAR K JOSHI(8042) for the Respondent(s) No. 2
MS MONALI BHATT ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                  Date : 25/08/2023

                                   ORAL ORDER

1. Heard Mr. P.P. Majmudar, learned advocate for the applicant

- original complainant, Mr. Kartikkumar Joshi, learned advocate for the respondent No.2 - original accused. Ms. Monali Bhatt, learned APP has appeared on behalf of the respondent No.1 - State.

2. Rule returnable forthwith. Learned APP waives service of Rule on behalf of the respondent No.1 - State and learned advocate waives service of Rule on behalf of the respondent No.2.

3. This application is filed under Section 378(4) of the Code of Criminal Procedure, seeking leave to appeal against the judgment and order dated 20.01.2022 passed by the learned 6 th Additional Chief Judicial Magistrate, Vadodara, in Criminal Case No.10329 of 2017. By the said judgment and order, the learned Magistrate has Page 1 of 3 Downloaded on : Sun Sep 17 02:36:46 IST 2023 NEUTRAL CITATION R/CR.MA/7759/2022 ORDER DATED: 25/08/2023 undefined proceeded to record the acquittal of the present respondent No.2 for the offence punishable under Section 138 of the Negotiable Instruments Act.

4. Learned advocate for the applicant, at the outset, has invited attention of this Court to the "Kabuliyat / Bahedharikhat" executed by the present respondent in favour of Sujata Developers and its partners including the present complainant. The attention of this Court is drawn to the recital of the said document, which has been produced at Exhibit 11. It is submitted that the close examination of the aforesaid document clearly indicates that the disputed cheque No.541286 for an amount of Rs.13,90,200/- dated 31.12. 2016 was handed over to the original complainant - Manjulaben Desai towards the legally enforceable debts. Learned advocate, therefore, submitted that the learned Magistrate had committed gross error in not appreciating the aforesaid evidence, which has been brought on record by the complainant, while recording the findings that the complainant has failed to prove her case that the disputed cheque was given towards existing legally enforceable debt.

5. Considering the submissions of the learned advocate for the applicant and having perused the impugned judgment and order as well as the document relied upon by the learned advocate, prima facie, this Court finds that present application seeking leave to appeal requires consideration. Hence, this application is allowed. Rule is made absolute.

NEUTRAL CITATION R/CR.MA/7759/2022 ORDER DATED: 25/08/2023 undefined CRIMINAL APPEAL No. 846 of 2022:

ADMIT. Learned APP waives service of Notice of admission on behalf of the respondent No.1 State. Learned advocate Mr. Joshi waives service of Notice of admission on behalf of the respondent No.2 - accused.

Let R & P be called for.

(NISHA M. THAKORE,J) Y.N. VYAS Page 3 of 3 Downloaded on : Sun Sep 17 02:36:46 IST 2023