R/CR.MA/8250/2022 ORDER DATED: 09/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 8250 of 2022
In R/CRIMINAL APPEAL NO. 899 of 2022
With
R/CRIMINAL APPEAL NO. 899 of 2022
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VIVEKKUMAR PRAMODBHAI BAROT
Versus
STATE OF GUJARAT
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Appearance:
DARSHIT R BRAHMBHATT(8011) for the Applicant(s) No. 1
MR MAKBUL I MANSURI(2694) for the Respondent(s) No. 2
MR.H.K.PATEL, APP,for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 09/03/2023
ORAL ORDER
[1] RULE. Learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent-state. [2] This application is for Special Leave to Appeal filed by the applicant against the judgment and order dated 30.03.2022 in Criminal Case No.2401 of 2019 by the 2nd Additional Chief Judicial Magistrate, Nadiad. In the aforesaid order, the respondent No.2-accused was acquitted in the proceedings under Section 138 of the Negotiable Instrument Act.
[3] Learned Advocate for the applicant submitted that the erroneous conclusion is drawn that the respondent-accused has successfully rebutted the presumption under the provisions of NI Act merely on the Page 1 of 3 Downloaded on : Fri Mar 10 20:44:24 IST 2023 R/CR.MA/8250/2022 ORDER DATED: 09/03/2023 further statement recorded under Section 313 of the CRPC. It is submitted that though the statutory demand notice was served upon the respondent accused on 24.05.2019, there is no reply by the respondent-accused to create a ground for rebutting the presumption which has been taken at the stage of recording of further statement under Section 313 of the CRPC. Learned advocate for the applicant has also submitted that even if a statement under Section 313 of CRPC is perused, then also the transaction is admitted and that there is some amount due which is coming on record and therefore, when the cheque and the signature/content of the cheque are not disputed, in that case, merely by appreciating the statement under Section 313 of CRPC, the Court could not have recorded acquittal. [4] In view of the aforesaid, Special Leave to Appeal is granted. Accordingly, present Criminal Misc. Application stands allowed. Rule is made absolute accordingly.
===================================== ORDER IN CRIMINAL APPEAL
1. The Appeal is admitted.
2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees Five Thousand only) against the respondent- original accused. Page 2 of 3 Downloaded on : Fri Mar 10 20:44:24 IST 2023 R/CR.MA/8250/2022 ORDER DATED: 09/03/2023 (A.Y. KOGJE, J) SIDDHARTH Page 3 of 3 Downloaded on : Fri Mar 10 20:44:24 IST 2023