NEUTRAL CITATION
R/CR.MA/10457/2023 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. 10457
of 2023
In R/CRIMINAL APPEAL NO. 1380 of 2023
With
R/CRIMINAL APPEAL NO. 1380 of 2023
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RAMESHBHAI AMBARAMBHAI VASOYA (PATEL)
Versus
STATE OF GUJARAT
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Appearance:
MR S D MOGHARIYA(11273) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS DIVYNAGNA JHALA, ADDL.PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 01/11/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 10457 of 2023
1. This is an application preferred 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, passed by the learned 3 rd Additional Chief Judicial Magistrate, Surendranagar dated 06.04.2023 in Criminal Case No.553 of 2017.
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NEUTRAL CITATION R/CR.MA/10457/2023 ORDER DATED: 01/11/2023 undefined
2. Learned advocate Mr.Savankumar Moghariya for the applicant submits that though issuance of the cheque and signature was not disputed by the respondent- accused and there was no probable defence placed on the record either during the cross examination or by leading the independent evidence. Learned advocate Mr.Moghariya further submits that though statutory presumption, which is in favour of the respondent- accused was not rebutted by him by leading the evidence which may be in the nature of preponderance of the probabilities, learned trial Court had acquitted the respondent-accused. Learned advocate for the applicant Mr.Moghariya draws attention of this Court with regard to the reasonings given by the learned trial Court, wherein the judgment and order of the acquittal was passed on the ground that the complainant had availed the loan facility and complainant fails to establish that on which date, in whose presence and at which place the money was advanced. Learned advocate Mr.Moghariya further submits that though the burden is on the accused to rebut statutory presumption by leading the probable defence, which may be accepted by the prudent man. In Page 2 of 3 Downloaded on : Wed Nov 01 20:49:26 IST 2023 NEUTRAL CITATION R/CR.MA/10457/2023 ORDER DATED: 01/11/2023 undefined the present case, though accused fails to rebut the presumption of the legally enforceable debt, impugned judgment and order was passed.
3. In view of the above submissions, present application seeking leave to prefer an appeal is allowed. ORDER IN R/CRIMINAL APPEAL NO. 1380 of 2023
1. The appeal is admitted. Learned APP Ms.Jhala waives service of notice of admission on behalf of respondent- State.
2. Issue Bailable Warrant in the sum of Rs.5,000/- (Rupees Five Thousand Only) against the respondent-original accused.
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