R/CR.MA/271/2023 ORDER DATED: 28/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 271 of 2023
In R/CRIMINAL APPEAL NO. 37 of 2023
With
R/CRIMINAL APPEAL NO. 37 of 2023
==========================================================
HITENDRABHAI DINUPRASAD JOSHI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR VAIBHAV N SHETH(5337) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR. BHARGAV PANDYA, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 28/03/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC. APPLICATION NO. 271 of 2023
1. Heard Mr. Vaibhav Sheth, learned advocate on record for the applicant-original complainant.
2. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of respondent-State.
3. This is an application seeking leave to appeal filed by the applicant-original complainant under Section 378(4) of Cr.P.C., 1973, challenging the judgment and order of acquittal dated 16.09.2022 passed by the learned 3rd Additional Judicial Magistrate First Class, Modasa, Aravalli in Criminal Case No.47 of 2016. By the said judgment Page 1 of 3 Downloaded on : Wed Mar 29 20:44:46 IST 2023 R/CR.MA/271/2023 ORDER DATED: 28/03/2023 and order, the learned Magistrate has recorded the order of acquittal of the respondent No.2 for the offence punishable under Section 138 of the N.I. Act.
4. Mr. Vaibhav Sheth, learned advocate on record for the applicant-original complainant, has submitted that one of the ground for not entertaining the complaint is that the trial court has disbelieved the case of the complainant, considering the defence raised by the accused that the applicant has failed to prove his source of income in advancing the amount and in absence of any proof in writing in the form of promissory note or otherwise, the learned Magistrate has erroneously arrived at conclusion that no legally recoverable debt was existing on the date of presentation of the disputed cheque. He has placed on record the paper book and has invited attention of this Court to the averments of the accused in the reply given to the statutory notice. He has relied upon the decisions of the Hon'ble Apex Court in the case of Rohitbhai Jivanlal Patel vs. State of Gujarat and Another reported in (2019) 18 SCC 106 and in the case of Tedhi Singh vs. Naryan Dass Mahant reported in (2022) 6 SCC 735 and has submitted that merely in cross-examination, the complainant has denied the fact about source of income, the presumption raised in favour of complainant should not have been treated as rebutted. The learned Magistrate ought not to have Page 2 of 3 Downloaded on : Wed Mar 29 20:44:46 IST 2023 R/CR.MA/271/2023 ORDER DATED: 28/03/2023 proceeded to record the order of acquittal. He therefore, urged this Court to grant leave to appeal.
5. Considering the submissions made by learned advocate for the applicant-original complainant, prima facie, this Court finds that the matter requires consideration in absence of any denial of signature on the disputed cheque. Statutory presumption available under Sections 118 and 139 of the Act, was required to be extended in favour of the complainant, more particularly, as regards existence of legally enforceable debt. The basic ingredients of Section 138 of the N.I. Act, are apparent on the face of the record as reflected from the documents placed on record. Hence, present application for leave to appeal is granted. Rule is made absolute.
ORDER IN R/CRIMINAL APPEAL NO. 37 of 2023
1. ADMIT. Learned APP waives service of notice of admission for and on behalf of respondent-State.
2. Issue bailable warrant of Rs. 10,000/- against respondent- accused.
3. Respondent-accused be served through concerned police station.
4. Registry is hereby directed to call for Record & Proceedings.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 3 of 3 Downloaded on : Wed Mar 29 20:44:46 IST 2023