Gujarat High Court
Nikhilkumar Mukeshbhai Thoriya vs State Of Gujarat on 18 December, 2023
NEUTRAL CITATION
R/CR.MA/18270/2022 ORDER DATED: 18/12/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 18270
of 2022
In R/CRIMINAL APPEAL NO. 1966 of 2022
With
R/CRIMINAL APPEAL NO. 1966 of 2022
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2022
In R/CRIMINAL APPEAL NO. 1966 of 2022
With
R/CRIMINAL MISC.APPLICATION NO. 18314 of 2022
In
R/CRIMINAL APPEAL NO. 1974 of 2022
With
R/CRIMINAL APPEAL NO. 1974 of 2022
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2022
In R/CRIMINAL APPEAL NO. 1974 of 2022
With
R/CRIMINAL MISC.APPLICATION NO. 18744 of 2022
In
R/CRIMINAL APPEAL NO. 2015 of 2022
With
R/CRIMINAL APPEAL NO. 2015 of 2022
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2022
In R/CRIMINAL APPEAL NO. 2015 of 2022
With
R/CRIMINAL MISC.APPLICATION NO. 18745 of 2022
In
R/CRIMINAL APPEAL NO. 2016 of 2022
With
R/CRIMINAL APPEAL NO. 2016 of 2022
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2022
In R/CRIMINAL APPEAL NO. 2016 of 2022
==========================================================
NIKHILKUMAR MUKESHBHAI THORIYA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR RUTVIJ S OZA(5594) for the Applicant(s) No. 1
MR. ASHOK A PUROHIT(6267) for the Respondent(s) No. 2
MS VRUNDA SHAH APP for the Respondent(s) No. 1
==========================================================
Page 1 of 5
Downloaded on : Mon Dec 18 20:51:24 IST 2023
NEUTRAL CITATION
R/CR.MA/18270/2022 ORDER DATED: 18/12/2023
undefined
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 18/12/2023
ORAL ORDER
Order in R/CRIMINAL MISC.APPLICATION/S (FOR LEAVE TO APPEAL/S) Learned advocate, Mr.Rutvij Oza, for the applicant/s submits that the judgment and order of the trial Court was based on two grounds. One is the signature differed and another is, there is no legally enforceable debt qua the respondent-accused. Learned advocate, Mr.Oza submits that learned trial Court erred in shifting the burden to prove the signature and to hold that complainant fails to apply for the handwriting expert's opinion to prove the signature of the respondent-accused. Learned advocate, Mr.Oza, submits that, in fact, in the instant case, which is arising from the dishonored cheque, presumption in favour of the complainant and that is to be rebutted by the respondent- accused by leading the probable defence. If respondent-accused is contending that signature is not of him then it is the duty of the respondent-accused to apply for the handwriting expert's opinion. Learned advocate, Mr.Oza submits that so far as other Page 2 of 5 Downloaded on : Mon Dec 18 20:51:24 IST 2023 NEUTRAL CITATION R/CR.MA/18270/2022 ORDER DATED: 18/12/2023 undefined ground on which the respondent-accused was acquitted i.e. there is no legally enforceable debt qua the respondent-accused is concerned, at the time of issuing the cheque, the respondent had also executed the Bahendhari Karar wherein, he undertakes that if the company, namely, Navbharat Realcon Pvt. Ltd. would not able to make the payment of the insured amount then present respondent-accused would be liable and for that, disputed cheques are issued and details were mentioned in the aforesaid Bahendhari Karar. Learned advocate, Mr.Oza submits that the debt, which is occurred to the company, would fall in the category of "other liability" towards the respondent-accused as only on the assurance given by the respondent - accused, the complainant has taken insurance and for that disputed cheques were issued. Learned advocate, Mr.Oza further submits that respondent-accused had not replied to the demand notice neither disputed said Bahendhari Karar wherein, the cheque number is mentioned. Learned advocate, Mr.Oza further submits that even no any defence was raised except legally enforceable debts by the respondent-accused. However, the learned trial Court without considering the fact that respondent-accused had Page 3 of 5 Downloaded on : Mon Dec 18 20:51:24 IST 2023 NEUTRAL CITATION R/CR.MA/18270/2022 ORDER DATED: 18/12/2023 undefined not rebutted the presumption by leading the probable defence, which may be in the nature of preponderance of the probability, acquitted the respondent-accused and therefore, it is prayed to grant the leave to prefer an appeal/s and to admit the appeals.
This Court finds some force in the submissions made by learned advocate for the applicant/s, therefore, applications seeking leave to prefer an appeal/s are allowed. Applications stand disposed of.
Order in Criminal Appeals.
All these appeals are admitted.
Mr.Ashok Prajapati, learned advocate waives service of notice of admission on behalf of respondent No.2 and Ms.Vrunda Shah, learned APP waives service of notice of admission on behalf of respondent-State.
Registry is directed to call for the Record and proceedings from the Court below. Matters be listed as per seiatim. Page 4 of 5 Downloaded on : Mon Dec 18 20:51:24 IST 2023
NEUTRAL CITATION R/CR.MA/18270/2022 ORDER DATED: 18/12/2023 undefined Order in Applications for Stay.
Learned advocate, Mr.Oza, submits that while acquitting the respondent-accused, learned trial Court directed to refund the same, which was deposited pursuant to the order passed under Section 143A(4) of the Negotiable Instruments Act.
In view of the admission of the appeals, learned advocate prays to stay the directions issued in the impugned order at para-3.
This Court finds that as the appeals are admitted, therefore, direction, which are issued to refund the amount, is also required to be stayed.
In view of the same, applications preferred by the learned advocate for stay are allowed. Impugned order in all these applications dated 28th July, 2022 specifically paragraph No.3 is hereby stayed. Accordingly, all these civil applications for stay stand disposed of.
(M. K. THAKKER,J) ASHISH M. GADHIYA Page 5 of 5 Downloaded on : Mon Dec 18 20:51:24 IST 2023