NEUTRAL CITATION
R/CR.MA/19781/2023 ORDER DATED: 06/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 19781
of 2023
In R/CRIMINAL APPEAL NO. 2509 of 2023
With
R/CRIMINAL APPEAL NO. 2509 of 2023
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HARSHADBHAI JAMNADAS GADHIYA
Versus
STATE OF GUJARAT
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Appearance:
MR RATHIN P RAVAL(5013) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR BHARGAV PANDYA, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 06/11/2023
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION NO. 19781 OF 2023
1. This is an application preferred by the applicant-original complainant under Section 378 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 Principal Senior Civil Court & Additional Chief Judicial Magistrate, Savrkundla in Criminal Case No.650 of 2022 dated 31.8.2023.
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NEUTRAL CITATION R/CR.MA/19781/2023 ORDER DATED: 06/11/2023 undefined
2. Heard learned advocates appearing for respective parties and perused the impugned judgment and order of the trial Court.
3. Learned advocate Mr. Raval for the applicant submits that so far as the signature in cheque and issuance of cheque is not disputed, there was no any probable defence which was led before the Trial Court merely the false case was pleaded by the respondent-accused which was accepted without any cogent evidence. Learned advocate for the applicant further submits that the Trial Court comes to the conclusion that the complainant fails to establish the case under Section 138 of the Negotiable Instruments Act on the ground that before the disputed transaction, the police complaint was filed by the respondent-accused against the present applicant with regard to non-payment of the sale consideration. The Trial Court observed in the impugned judgment that as the complaint which was filed before the police station was in the month of August 2021, the story put up by the present applicant that he had lent the money in the month of October 2021, cannot be believed. Learned advocate for the applicant further submits Page 2 of 3 Downloaded on : Mon Nov 06 20:51:43 IST 2023 NEUTRAL CITATION R/CR.MA/19781/2023 ORDER DATED: 06/11/2023 undefined that though the presumption which is in favour of the present applicant under Sections 118 and 139 was not rebutted, the defence was accepted by the Trial Court and committed error. Therefore, the learned advocate prays to allow this application to prefer an appeal.
4. In view of the above submissions, this Court deems fit to allow this application for leave to prefer an appeal. Hence, this application is allowed.
ORDER IN APPEAL No.2509 OF 2023 The appeal is admitted. Learned APP Mr. Bhargav Pandya waives service of notice of admission on behalf of respondent State.
Issue Bailable Warrant in the sum of Rs.5,000/- (Rupees Five Thousand Only) against the respondent-original accused.
In the meantime, R&P be called for. Registry is directed to list this matter as per seriatim.
(M. K. THAKKER,J) Bharat Page 3 of 3 Downloaded on : Mon Nov 06 20:51:43 IST 2023