NEUTRAL CITATION
R/CR.MA/4149/2021 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. 4149
of 2021
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HARESHBHAI RAGHAVJIBHAI VARIYA
Versus
STATE OF GUJARAT
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Appearance:
MR ADITYA P MISTRI(11315) for the Applicant(s) No. 1
MR. BHAVIK P SHAH(6391) for the Respondent(s) No. 2
Ms. Vrunda 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. Aditya Mistri learned advocate for the applicant and Mr. Bhavik Shah, learned advocate for the respondent no.2- accused.
2. This application is filed under Section 378(4) of the Code of Criminal Procedure seeking special leave to appeal against the judgment and order dated 07.03.2020 passed by the learned 8 th Additional Senior Civil Judge & ACJM, Surat passed in Criminal Case No.15825 of 2010. By the said judgment and order, the learned Magistrate has recorded the acquittal of respondent no.2
- original accused for the offence alleged under Section 138 of the Negotiable Instruments Act.
3. Learned advocate for the applicant has invited attention of this Court to the reasons assigned by the learned Magistrate, while recording the impugned order of acquittal and has submitted that learned Magistrate has drawn adverse inference Page 1 of 2 Downloaded on : Thu Oct 05 20:58:57 IST 2023 NEUTRAL CITATION R/CR.MA/4149/2021 ORDER DATED: 04/10/2023 undefined against the applicant mainly on the ground that the original complainant has failed to place on record the details of the Pan Card and the Income Tax Returns, as against the specific defence being raised by the respondent -accused with regard to his financial capacity to give hand loan of an amount of Rs.70,000/-. At the same time, the learned Magistrate has taken note of the aforesaid document being brought on record by the respondent -accused. The explanation offered by the complainant with regard to the source of income has also not been accepted by the learned Magistrate in absence of any cogent material being brought on record. Prima facie, this Court is of the view that the aforesaid approach of the learned Magistrate is against the principle laid down by the Hon'ble Supreme Court in the case of Tedi Singh vs. Narayan Dass Mahant reported in 2022 Live Law (SC) 275. Learned advocates appearing for the respective parties were called upon to confirm the fact of any reply being given to the legal notice addressed by the original complainant to the respondent accused. According to the learned advocate for the applicant, no reply was given to the legal notice.
4. Considering the aforesaid submissions of learned advocates for the respective parties and having perused the impugned judgment and order, the appeal deserves admission. Hence, the present application seeking leave to appeal is allowed and Leave to Appeal, as prayed for, is hereby granted.
(NISHA M. THAKORE,J) KAUSHIK J. RATHOD Page 2 of 2 Downloaded on : Thu Oct 05 20:58:57 IST 2023