NEUTRAL CITATION
R/CR.MA/17835/2022 ORDER DATED: 31/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17835 of 2022
In R/CRIMINAL APPEAL NO. 1914 of 2022
With
R/CRIMINAL APPEAL NO. 1914 of 2022
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AMIT NARENDRABHAI PATEL
Versus
PRAGNESHBHAI DASHRATHBHAI PATEL
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Appearance:
MR MB RANA(2760) for the Applicant(s) No. 1
MR MANISH J PATEL(2131) for the Respondent(s) No. 1
Ms. Monali Bhatt, Addl.PUBLIC PROSECUTOR for the Respondent(s)
No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 31/08/2023
ORAL ORDER
1. Leave to amend the cause title. Let, amendment be carried out forthwith.
2. Heard Mr. M B Rana, learned advocate for the applicant- original complainant, Mr. Manish J Patel, learned advocate for the respondent no.1 and Ms. Monali Bhatt, learned Additional Public Prosecutor for the respondent State.
3. This application is filed seeking leave to appeal under Section 378(4) of the Code of Criminal Procedure challenging the judgment and order dated 26.07.2022 passed below Exh.24 in Criminal Case No.137 of 2014 passed by the learned Additional Chief Judicial Metropolitan Magistrate, NI Court No.27, Ahmedabad. By the said judgment and order, the learned Magistrate has proceeded to record the acquittal of the original accused for the offences punishable under Section 138 of the Page 1 of 3 Downloaded on : Sun Sep 17 03:06:00 IST 2023 NEUTRAL CITATION R/CR.MA/17835/2022 ORDER DATED: 31/08/2023 undefined Negotiable Instruments Act.
4. Learned advocate for the applicant has invited attention of this Court to the reasons assigned by the learned Magistrate while recording impugned order of acquittal. On close reading of the reasons assigned by the learned Magistrate, the Court notices that the learned Magistrate has proceeded to record the acquittal mainly on the ground that the applicant had failed to lead any cogent material on record to show that the applicant had financial capacity to part with the amount of Rs.25 lakhs to the respondent accused. The attention of this Court is invited to the defence raised by the respondent-accused wherein it has been contended that the bank account was opened under coercion and the cheque signed by the respondent no.3 was misused by one Jalpeshkumar @ Lalabhai Patel. Prima facie, the Court notices that no cogent material has been led by the respondent - accused before the trial Court. In support of such defence, it is submitted before this Court by the learned advocate for the applicant that no complaint has been filed by the accused with regard to misuse of cheque and issuance of cheque under coercion. On the other hand, the Court notices that the signature on the disputed cheque has not been denied by the respondent-accused. In such circumstances, initial burden is discharged by the complainant that the cheque was issued by the accused and signature and the issuance of cheque being not disputed by the accused, the onus was upon the accused to prove the contrary that the cheque was not for any debt or other liability. As held by the Hon'ble Supreme Court in the case of P.Rasiya vs. Abdul Nazer and Another reported in 2022 JX (SC) 997, presumption under Section 139 of the Act being statutory Page 2 of 3 Downloaded on : Sun Sep 17 03:06:00 IST 2023 NEUTRAL CITATION R/CR.MA/17835/2022 ORDER DATED: 31/08/2023 undefined presumption had remained intact. Learned advocate for the applicant has relied upon the judgment of the Hon'ble Supreme Court in the case of Tedi Singh vs. Narayan Dass Mahant reported in 2022 Live Law (SC) 275 and has submitted that dishonor of cheque, no complaint was given for loss of cheque book. In absence of denial by the accused about the signature on cheque in question being not put by him, there is no rebuttal of presumption which has otherwise arose in favour of the original complainant.
5. Considering overall circumstances, the Court finds that he present application seeking leave to appeal requires consideration. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted. Rule is made absolute.
Order in Criminal Appeal No.1914 of 2022 Admit. Learned Additional Public Prosecutor waives service of admission on behalf of respondent State and Mr. Manish Patel, learned advocate waives service of admission on behalf of the respondent no.1. Registry is directed to call for the Record and Proceedings of the case from the concerned Court.
Registry is directed to notify the present appeal for hearing on 3.10.2023.
(NISHA M. THAKORE,J) KAUSHIK J. RATHOD Page 3 of 3 Downloaded on : Sun Sep 17 03:06:00 IST 2023