NEUTRAL CITATION
R/CR.MA/9504/2019 ORDER DATED: 04/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 9504
of 2019
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GOHIL NATWARSINH UDAYSINH
Versus
STATE OF GUJARAT
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Appearance:
MR PRAKASH G PANDYA(3041) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
Ms. Vrunda C Shah, Addl. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 04/10/2023
ORAL ORDER
1. Heard Mr. Prakash Pandya, learned advocate for the applicant- original complainant.
2. This application seeking leave to appeal has been filed by the original complaint under Section 378(4) of the Code of Criminal Procedure challenging the impugned judgment and order dated 07.12.2018 passed by the learned Additional Chief Judicial Magistrate, Mahisagar in Criminal Case No.1938 of 2015, whereby, the learned Magistrate has recorded the order of acquittal of present respondent no.2 for the offences punishable under Section 138 of the Negotiable Instruments Act, 1881.
3. It is the case of the applicant- original complainant that the respondent - original accused is his nephew and had borrowed the amount of Rs.80,000/- from him. Against the repayment of the aforesaid hand loan, the respondent accused had given disputed cheque dated 30.08.2015 drawn in favour of Page 1 of 3 Downloaded on : Thu Oct 05 20:59:06 IST 2023 NEUTRAL CITATION R/CR.MA/9504/2019 ORDER DATED: 04/10/2023 undefined the present applicant- original complainant. Before the trial Court, the respondent had raised defence that the son of the applicant- original complainant and the respondent had entered into an agreement to purchase the agricultural land bearing revenue survey no.253/2A for an amount of Rs.4,90,000/-, out of which, an amount of Rs.4,70,000/- was paid to the complainant and his son, whereas for remaining amount of Rs.20,000/-, the respondent- accused had handed over the blank cheque, which was misused by the present complainant alleging the hand loan of Rs.80,000/-. It is further submitted by the respondent-accused that no transaction had taken place between the parties as contended by the complainant. Before the trial Court, the respondent had offered himself in the witness box and has also examined the four witnesses in support of his case. Apart from the aforesaid witnesses, the respondent has also led documentary evidence, which included the alleged agreement to sell, which has been brought on record at Exh.47. The accused has examined witness - Baria Bhavanbhai Dilipbhai vide Exh.48 who appears to be one of the witness of such agreement Exh.47. The said witness has supported the defence of the accused and has confirmed the fact of execution of such agreement between the parties. The complainant has disputed the execution of such alleged agreement. The attention of this Court is invited to the evidence of Mahendrasinh Natwarsinh Gohil, who has been examined at Exh.39. The said witness is the son of the complainant and has declared on oath before the Court that such agreement does not bears the signature of his father. He has also denied his signature on such agreement. While examining the aforesaid stand of the complainant and his son, disputing the execution of such Page 2 of 3 Downloaded on : Thu Oct 05 20:59:06 IST 2023 NEUTRAL CITATION R/CR.MA/9504/2019 ORDER DATED: 04/10/2023 undefined agreement, prima facie, the Court notices that one witness viz. Girishbhai Ratanbhai Parmar in his evidence has declared that though the agreement was entered into between the parties, the possession was not handed over to the complainant's son. Later on he realized about the execution of such agreement in favour of respondent -accused. At that stage, such witness has placed on record the relevant revenue record, which has been marked at Exhs. 53 to 55. In his cross examination, he has admitted that the possession of the said land is with the present accused. The aforesaid contradiction in the evidence of the said witness raises doubt about the execution of the agreement itself by the complainant and his son, as contended in the defence raised before the trial Court. Learned advocate has placed on record the application given by the present applicant to the Superintendent of Police, Mahisagar for registration of the FIR against the present respondent - original accused alleging about the forged document in the nature of agreement executed vide Exh.47 relied upon by the respondent- accused. It is further submitted that such complaint is pending for consideration and the inquiry is in progress. The matter requires to be closely examined. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted.
(NISHA M. THAKORE,J) KAUSHIK J. RATHOD Page 3 of 3 Downloaded on : Thu Oct 05 20:59:06 IST 2023