Gujarat High Court
Arajanji Baluji Solanki vs State Of Gujarat on 7 December, 2023
NEUTRAL CITATION
R/CR.MA/21629/2023 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. 21629
of 2023
In R/CRIMINAL APPEAL NO. 2708 of 2023
With
R/CRIMINAL APPEAL NO. 2708 of 2023
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ARAJANJI BALUJI SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
KRUNAL S MEHTA(9227) for the Applicant(s) No. 1
DHAVAL A PARMAR(7780) for the Respondent(s) No. 2
MS VRUNDA C SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 07/12/2023
COMMON 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 05.06.2023 passed by the learned Additional Judicial Magistrate First Class, Himmatnagar in Criminal Case No. 5287 of 2019.
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NEUTRAL CITATION R/CR.MA/21629/2023 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. Mr. Kunal Mehta, learned advocate submits that though the presumption, which is in favour of the complainant under Section-118 and 139 of the N.I. Act, was not rebutted by the respondent - accused by leading the probable defence, which may be in the nature of preponderance of probabilities, the learned trial Court had acquitted the respondent - accused on two grounds; one is that the complainant fails to prove his financial capacity to lend the money and another is that the complainant does not have the bank account. Learned advocate drawn the attention of this Court with regard to the cross-examination, which was conducted by the respondent - accused below Exh.13, wherein, it transpires that the complainant is having the agricultural land around 15 vighas, where, the co-owner is the sister of the complainant. The complainant had at one place stated that "it is true that he does not have the bank account, but in the next line, he submits that Exh.17 is the bank-slip, is of his account" and Page 2 of 4 Downloaded on : Thu Dec 07 20:48:20 IST 2023 NEUTRAL CITATION R/CR.MA/21629/2023 ORDER DATED: 07/12/2023 undefined further, it is submitted that I am having the bank account. Though the learned trial Court had acquitted the respondent - accused on the ground that the bank officer was not examined to prove that the complainant is having the bank account. Learned advocate submits that though the bank-slip, which was exhibited below Exh.17 belongs to the account of the complainant, the fact can be averred from the said evidence that the complainant is having the bank account. Mere, non- examining of the bank officer, would not amount to rebutting the presumption, but when the issuance of the cheque and signature was not disputed by the accused and therefore, it was prayed for to grant the Leave to prefer an Appeal.
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 Page 3 of 4 Downloaded on : Thu Dec 07 20:48:20 IST 2023 NEUTRAL CITATION R/CR.MA/21629/2023 ORDER DATED: 07/12/2023 undefined notice of admission on behalf of respondent no.1 - State and Mr. Dhaval Parmar, learned advocate waives service of notice of admission on behalf of the respondent no.2 - accused.
2. 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 20:48:20 IST 2023