NEUTRAL CITATION
R/CR.MA/11874/2021 ORDER DATED: 28/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11874 of 2021
In R/CRIMINAL APPEAL NO. 926 of 2021
With
R/CRIMINAL APPEAL NO. 926 of 2021
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BHARATBHAI VINUBHAI CHAUHAN
Versus
STATE OF GUJARAT
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Appearance:
DR. HIREN S SOMAIYA(8031) for the Applicant(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 2
MS. M.H. BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 28/08/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION NO. 11874 of 2021
1. Heard Mr. Hiren S. Somaiya, learned advocate on record for the applicant-original complainant.
2. Though respondent No.2-original accused is served, but he has chosen not to appear before this Court or to contest the present application.
3. This application is preferred under Sub-Section (4) of Section 378 of Criminal Procedure Code, 1973 challenging the order of acquittal dated 08.03.2021 passed by learned 5 th Additional Senior Page 1 of 3 Downloaded on : Sun Sep 17 02:47:12 IST 2023 NEUTRAL CITATION R/CR.MA/11874/2021 ORDER DATED: 28/08/2023 undefined Civil Judge, Anand in Criminal Case No.932 of 2019. By the said judgment and order, the learned Magistrate has recorded the order of acquittal of respondent-accused for the offence alleged under Section 138 of the N.I. Act.
4. At the outset, learned advocate appearing for the applicant has invited attention of this court to the reasons assigned by the learned Magistrate while proceeding with recording of order of acquittal. It is submitted that the learned Magistrate has erroneously shifted the burden upon the complainant while appreciating the cross- examination of the complainant. It is further submitted that no response was there from the respondent-original accused to the legal notice, though duly served. In such circumstances, the learned Magistrate ought not to have taken into consideration the aspect of financial ability of the complainant to part with an amount of Rs.1 lakh. In support of his case, he has placed reliance upon the case of Tedhi Singh vs Narayan Dass Mahant reported in 2022 (6) SCC 735. It is further submitted that since the question was lead with regard to the existence of transaction as alleged in the complaint at the stage of cross-examination, while responding to such question, the complainant had offered the explanation that the amount was transferred by R.T.G.S. In such circumstances, the learned Magistrate ought to have appreciated the fact that aforesaid fact being not Page 2 of 3 Downloaded on : Sun Sep 17 02:47:12 IST 2023 NEUTRAL CITATION R/CR.MA/11874/2021 ORDER DATED: 28/08/2023 undefined controverted further in the cross-examination, the existence of transaction has been proved by the complainant. By making the aforesaid submissions, learned advocate for the applicant has urged this Court to grant leave to appeal.
5. Considering the submissions made by learned advocate for the applicant and having perused the impugned order, prima facie, the Court finds that an arguable case is made out to admit the appeal. Hence, present application seeking leave to appeal is hereby granted. Rule is made absolute.
R/CRIMINAL APPEAL NO. 926 of 2021
1. Admit.
2. Learned APP waives service of notice of admission for and on behalf of respondent-State.
3. Issue bailable warrant of Rs. 10,000/- against respondent- accused.
4. Registry is hereby directed to call for Record & Proceedings from the concerned trial court forthwith.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 3 of 3 Downloaded on : Sun Sep 17 02:47:12 IST 2023