Gujarat High Court
Anilkumar Jayantibhai Patel vs State Of Gujarat on 7 December, 2023
NEUTRAL CITATION
R/CR.MA/21656/2023 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. 21656
of 2023
In R/CRIMINAL APPEAL NO. 2707 of 2023
With
R/CRIMINAL APPEAL NO. 2707 of 2023
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ANILKUMAR JAYANTIBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
KAMLESH B PATEL(8636) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3,4
MS DIVYANGNA JHALA, 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 04.10.2023 passed by the learned 9 th Additional Judicial Magistrate First Class, Mehsana in Criminal Case No.9302 of 2021.
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2. Heard, learned advocates appearing for respective parties and perused the impugned judgment and order of the trial Court.
3. Mr. Kamlesh Patel, learned advocate for the appellant submits that the presumption, which is in favour of the complainant, was not rebutted by the respondent - accused. The bare words with regard to the repayment of the loan was accepted. Learned advocate drawn the attention of this Court with regard to the cross-examination of the complainant, wherein, it is averred that the cheque of Rs.76,42,319/- was given towards the outstanding of two loan accounts. The loan statement, which was produced below Exh.26 showing that after repayment of some of the installments, the outstanding dues as on date i.e.31.05.2021, is the cheque amount. Learned advocate has drawn attention of this Court with regard to the cross-examination of the accused no.2 below Exh.59, wherein, he himself admitted that he availed the loan facility of Rs.25 lakh and Rs.84 lakh and had executed the loan agreement and sign after reading the same. He admits that the amount, Page 2 of 4 Downloaded on : Thu Dec 07 20:48:21 IST 2023 NEUTRAL CITATION R/CR.MA/21656/2023 ORDER DATED: 07/12/2023 undefined which is deposited with the bank and the bank had not credited in his loan account and for that, there is no evidence. He himself has admitted that the loan account was declared as N.P.A. and despite various demands, payment of loan was not made. Learned advocate further submits that though the complainant, who is the financial institution, had discharged his initial burden and the respondent - accused failed to lead any probable defence, the learned trial Court had acquitted the respondent - 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 notice of admission on behalf of respondent - State. Page 3 of 4 Downloaded on : Thu Dec 07 20:48:21 IST 2023
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2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees Five Thousand only) against the respondent - original accused.
3. Record and proceedings be called for from the concerned court. Registry is directed to list the Criminal Appeal in seriatim.
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