Gujarat High Court
Manojbhai Chinubhai Solanki vs State Of Gujarat on 14 December, 2023
NEUTRAL CITATION
R/CR.MA/22196/2023 ORDER DATED: 14/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 22196
of 2023
In R/CRIMINAL APPEAL NO. 2757 of 2023
With
R/CRIMINAL APPEAL NO. 2757 of 2023
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MANOJBHAI CHINUBHAI SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
MR.RUCHIR R JOSHI(7241) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS DIVYANGNA JHALA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 14/12/2023
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 14.08.2023 passed by the learned 12 th Additional Chief Judicial Magistrate, Rajkot in Criminal Case No.10739 of 2021.Page 1 of 5 Downloaded on : Thu Dec 14 20:50:00 IST 2023
NEUTRAL CITATION R/CR.MA/22196/2023 ORDER DATED: 14/12/2023 undefined
2. Heard, learned advocates appearing for respective parties and perused the impugned judgment and order of the trial Court.
3. Mr. Ruchir Joshi, learned advocate for the applicant submits that the judgment and order of acquittal was passed on two main grounds; one is time barred debt and another is the financial capacity of the complainant was not proved. Learned advocate submits that it was held by the learned trial Court that the debt, which was of the year 2016, for which, the cheque was issued in the year 2021. Learned advocate relied on the Section-18 of the Limitation Act, which reproduced herein-below.
Section- 18. Effect of acknowledgment in writing.--
(1) Where, before the expiration of the prescribed period for a suit of application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.Page 2 of 5 Downloaded on : Thu Dec 14 20:50:00 IST 2023
NEUTRAL CITATION R/CR.MA/22196/2023 ORDER DATED: 14/12/2023 undefined (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation.--For the purposes of this section,--
(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right;
(b) the word "signed" means signed either personally or by an agent duly authorised in this behalf; and
(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.
By submitting this, learned advocate submits that on the day, when the cheque was issued, the respondent - accused had acknowledged the debt and therefore, fresh limitation period would start from the date, when the cheque was iued. Therefore, there is no any time barred debt as held by the Page 3 of 5 Downloaded on : Thu Dec 14 20:50:00 IST 2023 NEUTRAL CITATION R/CR.MA/22196/2023 ORDER DATED: 14/12/2023 undefined learned trial Court. Learned advocate further submits that so far as the other ground i.e. financial capacity is concerned, at the first point of time, i.e. the reply of the given notice, the respondent - accused had not challenged the financial capacity of the complainant to lend the amount neither statement under Section-313 of the Cr.P.C., the respondent - accused had defended the case on the basis of financial capacity. Learned advocate further submits that initial burden to rebut the presumption is on the respondent - accused under Section-118 and 139 of the N.I. Act. However, without discharging that burden, onus was shifted on the complainant to prove the case on the basis of financial capacity. Learned advocate submits that as the order passed by the learned Court below is without any cogent reason, the same was required to be interfered and therefore, it was prayed to allow this application seeking Leave to prefer an appeal and admit the criminal 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 Page 4 of 5 Downloaded on : Thu Dec 14 20:50:00 IST 2023 NEUTRAL CITATION R/CR.MA/22196/2023 ORDER DATED: 14/12/2023 undefined 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.
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.
(M. K. THAKKER,J) A. B. VAGHELA Page 5 of 5 Downloaded on : Thu Dec 14 20:50:00 IST 2023