NEUTRAL CITATION
R/CR.MA/16204/2023 ORDER DATED: 05/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 16204
of 2023
In R/CRIMINAL APPEAL NO. 2284 of 2023
With
R/CRIMINAL APPEAL NO. 2284 of 2023
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PATEL JAYNTIBHAI RANCHODBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR KAMLESH S KOTAI(6150) for the Applicant(s) No. 1
for the Respondent(s) No. 2
DIVYANGNA JHALA, ADDL.PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 05/10/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 16204 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 dated 25.07.2023, passed by the learned Additional Civil Judge & Judicial Magistrate First Class, Vijapur, District Mehsana in Criminal Case No.2733 of 2021.
2. Learned advocate Mr.Kamlesh Kotai for the applicant submits that the judgment and order of the acquittal passed by the learned Trial Court was mainly on two grounds one is time barred debt and the another is no financial capacity of the complainant was proved. Learned advocate Mr.Kotai submits that the presumption under Section 139 of the Negotiable Page 1 of 3 Downloaded on : Sat Oct 07 20:40:56 IST 2023 NEUTRAL CITATION R/CR.MA/16204/2023 ORDER DATED: 05/10/2023 undefined Instruments Act, 1881 would be in favour of the complainant and there is no requirement to produce the Income Tax return or the source of income of the complainant. Learned advocate Mr.Kotai has further relied on the undertaking signed by the accused as well as his wife and son who had attested as witnesses wherein it is mentioned that amount of Rs.15 Lakh which was given would be returned within a period of five years from the date of this undertaking i.e. 04.01.2014, which would give acknowledgment of debt. Therefore, the ground on which the judgment and order of acquittal was passed is without considering the undertaking which is exhibited during the trial at Exhibit No.24.
3. Considering the averments made in the application and submissions made by the learned advocate appearing for the applicant, there is some arguable case in favour of the applicant, leave, as prayed for, is granted. This application is allowed and stands disposed of accordingly. ORDER IN R/CRIMINAL APPEAL NO. 2284 of 2023
1. The appeal is admitted. Learned APP waives service of notice of admission on behalf of respondent-State. Page 2 of 3 Downloaded on : Sat Oct 07 20:40:56 IST 2023
NEUTRAL CITATION R/CR.MA/16204/2023 ORDER DATED: 05/10/2023 undefined
2. Issue Bailable Warrant in the sum of Rs.5,000/- (Rupees Five Thousand Only) against the respondent-original accused.
3. Let R & P be called for, so as to reach before this Court on or before 24.10.2023.
4. The matter is adjourned to 25.10.2023.
(M. K. THAKKER,J) M.M.MIRZA Page 3 of 3 Downloaded on : Sat Oct 07 20:40:56 IST 2023