R/CR.MA/4767/2023 ORDER DATED: 15/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4767 of 2023
In R/CRIMINAL APPEAL NO. 578 of 2023
With
R/CRIMINAL APPEAL NO. 578 of 2023
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JIKESH RADHESHYAMBHAI THAKKAR
Versus
STATE OF GUJARAT
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Appearance:
MS.DILBUR CONTRACTOR(6388) for the Applicant(s) No. 1
MS. JIRGA JHAVERI, APP,for the Respondent(s) No. 1
for the Respondent(s) No. 2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 15/03/2023
ORAL ORDER
1. RULE. Learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent-state.
2. This application is filed by the applicant for Special Leave to Appeal against the judgment and order dated 04.02.2023 by the Additional Chief Metropolitan Magistrate, Negotiable Instrument Court No.34, Ahmedabad in Criminal Case No.643 of 2016. By the impugned judgment and order, the respondent-accused is acquitted of the offence under Section 138 of the Negotiable Instrument Act.
3. At the outset, it appears that the Trial Court has proceeded on a wrong premise when it concludes that the applicant is required to establish beyond reasonable doubt, the existence of legally Page 1 of 2 Downloaded on : Thu Mar 16 20:43:02 IST 2023 R/CR.MA/4767/2023 ORDER DATED: 15/03/2023 enforceable debt and thereby completely giving a go-bye to the provisions of Section 139 of the N.I. Act. It appears that there was nothing on record produced by the respondent-accused to successfully rebut the presumption of existing legally enforceable debt or other dues against him towards the applicant and only upon evidence coming on record, the burden would shift upon the complainant to establish the existence of legally enforceable debt beyond reasonable doubt.
4. In view of the aforesaid, case is made out for grant of Special Leave to Appeal to prefer an appeal against the impugned judgment and order. 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.
(A.Y. KOGJE, J) SIDDHARTH Page 2 of 2 Downloaded on : Thu Mar 16 20:43:02 IST 2023