R/CR.MA/5141/2023 ORDER DATED: 24/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5141 of 2023
In R/CRIMINAL APPEAL NO. 683 of 2023
With
R/CRIMINAL APPEAL NO. 683 of 2023
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PARESHBHAI JAYANTIBHAI PATEL
Versus
PATEL ROHITBHAI DHIRAJBHAI
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Appearance:
KUMAR H TRIVEDI(9364) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR BHARGAV PANDYA ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 24/03/2023
ORAL ORDER
1. Heard Mr. Kumar H. Trivedi, learned advocate for the applicant.
2. Rule returnable forthwith. Learned APP waives service of Rule on behalf of the respondent No.2 State.
3. This is an application seeking leave to appeal filed by the applicant - original complainant challenging the judgment and order of acquittal dated 16.02.2023 passed by the learned Second Additional Judicial Magistrate First Class, Himmatnagar, in Criminal Case No.2369 of 2020 dated 16.02.2023. By the said judgment and order, learned Magistrate has recorded acquittal of the respondent No.1 - original accused for offence punishable under Section 138 of the Negotiable Instruments Act.
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4. Mr. Trivedi, learned advocate for the applicant has invited attention of this Court to the reasons recorded by the trial Court while recording the order of the acquittal. At the outset, he has submitted that the learned Magistrate has not entertained the complaint mainly on the ground that the return memo produced by the complainant vide Exhibit 13 is a computerized copy, which does not bear the seal of the bank neither has been signed by the Manager of the concerned bank and has not been supported by the Certificate under Section 65B of the Evidence Act. He has further drawn attention of this Court to Exhibit 18, which is original promissory note produced by the complainant executed between the complainant and the accused and has submitted that the aforesaid document clearly establishes the existence of legally enforceable debts existing as on date of presentation of cheque. In such circumstances, sufficient evidence has come on record to hold the respondent No.1 liable for the offence punishable under Section 138 of the Negotiable Instruments Act. He, therefore, urged this Court to grant leave to appeal.
5. Considering the averments made in the present leave to appeal, the grounds raised in the memo of appeal and submissions made by learned advocate for applicant, prima facie, I am of the view that the accused had failed to respond to the legal notice raising demand of the amount. Though summons were duly served upon the accused persons, the accused have failed to make payment. On the other hand, the learned Magistrate has recorded that accused has not disputed signature on the disputed cheque. Even document in the nature of promissory note executed between parties has stood established at Exhibit 18. In such circumstances, the existence of "legally enforceable debts" against Page 2 of 3 Downloaded on : Sat Mar 25 20:42:06 IST 2023 R/CR.MA/5141/2023 ORDER DATED: 24/03/2023 the accused has come on record. Hence, present leave to appeal requires consideration and is hereby allowed. Rule is made absolute.
CRIMINAL APPEAL NO. 683 of 2023:
ADMIT. Learned APP waives service of notice of admission on behalf of the respondent No.2 State.
Issue bailable warrant of in the sum of Rs. 10,000/- against private respondent.
R & P to be called for.
(NISHA M. THAKORE,J) Y.N. VYAS Page 3 of 3 Downloaded on : Sat Mar 25 20:42:06 IST 2023