NEUTRAL CITATION
R/CR.MA/23220/2019 ORDER DATED: 29/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23220 of 2019
With
R/CRIMINAL APPEAL NO. 2041 of 2023
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PARESHBHAI SAGARMAL SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR DHAVAL V SHAH(6634) for the Applicant(s) No. 1
MR BC DAVE(245) 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 : 29/08/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC. APPLICATION NO. 23220 of 2019
1. Heard learned advocates appearing for the respective parties.
2. Rule returnable forthwith. Learned advocate Mr. B.C. Dave waives service of notice of rule on behalf of respondent No.2-original accused and learned APP Ms. M.H. Bhatt waives service of notice of rule on behalf of respondent-State.
3. This application is filed under Sub-Section (4) of Section 378 of Criminal Procedure Code, 1973 challenging the order of acquittal dated 22.08.2019 passed by learned Additional Chief Metropolitan Page 1 of 3 Downloaded on : Sun Sep 17 02:56:03 IST 2023 NEUTRAL CITATION R/CR.MA/23220/2019 ORDER DATED: 29/08/2023 undefined Magistrate, Ahmedabad in Criminal Case No.834 of 2016.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 relied upon the copy of return memo, which has been brought on record vide Exh.8. It is submitted that the cheque bearing date 13.01.2016 was presented for realization of the amount, which was dishonoured on 02.03.2016. The legal notice dated 01.03.2016 was in fact, issued on 09.03.2016, which was received on 12.03.2016, which was responded by the respondent-accused by giving reply on 17.03.2016. By referring to the aforesaid dates, learned advocate for the applicant has submitted that the learned Magistrate committed serious error in not appreciating the aforesaid documents, which have been brought on record and have been duly admitted as evidence. Learned advocate for the applicant has further relied upon the invoices, which have also been brought on record vide Exh.17, which goes to indicate that in case of failure of the respondent-accused for payment of the amount raised in the bill, the applicant was entitled for realization of 18% of the interest. He therefore, urged this Court to grant leave to appeal.
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NEUTRAL CITATION R/CR.MA/23220/2019 ORDER DATED: 29/08/2023 undefined
5. Considering the submissions made by learned advocate for the applicant and having perused the record & proceedings as well as the grounds raised in the appeal memo, prima facie, the court finds that an arguable case is made out by the learned advocate for the applicant. Hence, the present application seeking leave to appeal is granted. Rule is made absolute.
ORDER IN R/CRIMINAL APPEAL NO. 2041 OF 2023
1. Admit.
2. Learned APP waives service of notice of admission for and on behalf of respondent-State and learned advocate Mr. B.C. Dave waives service of notice of admission on behalf of respondent No.2- original accused
3. The appeal is expedited. Registry is hereby directed to call for Record & Proceedings before the next date of hearing.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 3 of 3 Downloaded on : Sun Sep 17 02:56:03 IST 2023