Gujarat High Court
Jayprakash Hasmukhlal Shah vs M/S Alaknanda Tubes on 7 December, 2023
NEUTRAL CITATION
R/CR.MA/20824/2023 ORDER DATED: 07/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 20824
of 2023
In R/CRIMINAL APPEAL NO. 2709 of 2023
With
R/CRIMINAL APPEAL NO. 2709 of 2023
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JAYPRAKASH HASMUKHLAL SHAH
Versus
M/S ALAKNANDA TUBES
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Appearance:
JAIVIK UDAY BHATT(7319) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3
MS DIVYANGNA JHALA, APP for the Respondent(s) No. 4
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 07/12/2023
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION:
1. This is an application by the applicant - original complainant under Section 378(4) of the Code of Criminal Procedure, 1973, seeking leave of this Court to present an appeal against the judgment and order of acquittal dated 15.04.2023 passed by the learned Chief Judicial Magistrate, Kalol, Gandhinagar in Criminal Case No.1437 of 2018. Page 1 of 4 Downloaded on : Thu Dec 07 20:48:18 IST 2023
NEUTRAL CITATION R/CR.MA/20824/2023 ORDER DATED: 07/12/2023 undefined
2. Heard, learned advocates appearing for respective parties and perused the impugned judgment and order of the trial Court.
3. Learned advocate, Mr. Jaivik Uday Bhatt for the applicant submits that though signature on the cheque and the agreement, which was accepted and not disputed by the respondent-accused, the learned trial Court acquitted the respondent on the two grounds that (1) the agreement was not executed in presence of the complainant and (2) the amount, which was returned back i.e. of Rs.25,00,000/- against advance of Rs.1 Crore was not endorsed as per Section 56 of the Negotiable Instruments Act. Learned Court has further observed in the impugned order that as the said amount is not mentioned in the notice, necessary ingredients mentioned in the Negotiable Instruments Act not satisfied. Learned advocate, Mr. Bhatt, submits that whether the agreement was executed in presence of the complainant or not that would not relevant as execution of the agreement and the signature is not denied by the respondent-accused during his further statement under Section 313 of the Code of Page 2 of 4 Downloaded on : Thu Dec 07 20:48:18 IST 2023 NEUTRAL CITATION R/CR.MA/20824/2023 ORDER DATED: 07/12/2023 undefined Criminal Procedure. Learned advocate, Mr. Bhatt, submits that so far as amount of Rs.15,12,000/- is concerned, the case of the complainant from the beginning is that amount was lent for expansion and during the cross examination, it was admitted by the complainant that an amount of Rs.15,12,000/- is deposited towards the interest for the period of one year and is deposited with the Bank on different dates. Therefore, endorsing the debt, under Section 56 of the Negotiable Instruments Act would not require and therefore, the acquittal on that ground is bad in law.
4. Considering the avernments made in the application and submissions made by the learned advocates appearing for the respective parties, this Court finds that there is some arguable case in favour of the applicant, therefore, leave, as prayed for, is granted. This application is allowed. ORDER IN CRIMINAL APPEAL:
1. The appeal is admitted. Learned APP waives service of notice of admission on behalf of respondent no.4 - State and Mr. Priyam Gandhi, learned advocate waives service of notice Page 3 of 4 Downloaded on : Thu Dec 07 20:48:18 IST 2023 NEUTRAL CITATION R/CR.MA/20824/2023 ORDER DATED: 07/12/2023 undefined of admission on behalf of respondent nos.2 and 3.
2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees Five Thousand only) against the respondent no.1 - original accused.
3. Record and proceedings be called for from the concerned court. Registry is directed to list the Criminal Appeal in seriatim.
(M. K. THAKKER,J) A. B. VAGHELA Page 4 of 4 Downloaded on : Thu Dec 07 20:48:18 IST 2023