NEUTRAL CITATION
R/CR.MA/19507/2023 ORDER DATED: 01/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 19507
of 2023
In R/CRIMINAL APPEAL NO. 2453 of 2023
With
R/CRIMINAL APPEAL NO. 2453 of 2023
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VISHNUBA ROHITSINH CHAUHAN
Versus
BHAVIN NARAYANBHAI CHAUDHARY
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Appearance:
MR S.R.KHSKANI, FOR MR RJ GOSWAMI(1102) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR BHARGAV PANDYA, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 01/11/2023
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION:
1. This is an application by the applicant - original complainant under Section 378(4) of the Code of Criminal Procedure, 1973, seeking leave of this Court to present an appeal against the judgment and order of acquittal dated 27.07.2023 passed by the learned Additional Civil Judge and Judicial Magistrate First Class, Vijapur in Criminal Case No. 1646 of 2022.
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2. Heard, learned advocates appearing for respective parties and perused the impugned judgment and order of the trial Court.
3. Mr. S.R. Keshkani, learned Advocate on behalf of Mr. R.J. Goswami, learned advocate for the applicant - original complainant submits that though the presumption, which is in favour of the complainant under Sections-118 and 139 of the N.I. Act, was not rebutted by the respondent - accused to discharge or to rebut the presumption and has not produced any evidence neither any circumstance was led before the learned trial Court, the learned trial Court had passed the judgment and order of the acquittal. Learned advocate further submits that the complainant and the respondent - accused are the next-door neighbours and the amount, which was received by the complainant towards the insurance of the husband, was landed to the respondent - accused. Learned advocate further submits that though the respondent - accused had not denied to the issuance of the cheque as well as signature on the cheque, the learned trial Court had Page 2 of 4 Downloaded on : Fri Nov 03 20:40:27 IST 2023 NEUTRAL CITATION R/CR.MA/19507/2023 ORDER DATED: 01/11/2023 undefined acquitted the respondent - accused on the sole ground that the complainant failed to prove his case by showing his financial capacity. Learned advocate further submits that after rebutting the presumption provided under the N.I. Act, only the burden would be shifted on the complainant, however, the learned trial Court committed an error in acquitting the respondent - accused despite the fact that with regard to defence towards the issuance of cheque for the security, no any evidence was led neither any circumstance was proved.
4. Considering the avernments made in the application and submissions made by the learned advocates appearing for the respective parties, this Court finds that there is some arguable case in favour of the applicant, therefore, leave, as prayed for, is granted. This application is allowed. ORDER IN CRIMINAL APPEAL:
1. The appeal is admitted. Mr. Bhargav Pandya, learned APP waives service of notice of admission on behalf of respondent no.2 - State.
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2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees Five Thousand only) against the respondent - original accused.
3. Record and proceedings be called for from the concerned court. Registry is directed to list the Criminal Appeal in seriatim.
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