NEUTRAL CITATION
R/CR.MA/8884/2021 ORDER DATED: 10/10/2023
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```IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 8884 of
2021
In R/CRIMINAL APPEAL NO. 707 of 2021
With
R/CRIMINAL APPEAL NO. 707 of 2021
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M/S. NATURAL COAL ENTERPRISE THROUGH ASHOKBHAI DAMJIBHAI
KOTADIYA
Versus
STATE OF GUJARAT
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Appearance:
VIJAY H PATEL(7361) for the Applicant(s) No. 1
MR HEMANT B RAVAL(3491) for the Respondent(s) No. 2
MS DIVYANGNA JHALA,ADDL.PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 10/10/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 8884 of 2021
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 Additional Chief Judicial Magistrate, Morbi dated 17.03.2021 in Criminal Case No.4070 of 2016.
2.Learned advocate Mr.Vijay Patel for the applicant submits that though the invoices were produced and proved below Exhibit 25 to Page 1 of 3 Downloaded on : Thu Oct 12 20:41:16 IST 2023 NEUTRAL CITATION R/CR.MA/8884/2021 ORDER DATED: 10/10/2023 undefined 67, learned judge observed that there is no contract, which is executed between the parties. Learned advocate Mr.Vijay Patel further submits that there was no any notice, which was issued disputing the price and quantum of the goods during the existence of the contract, merely the defence, which was taken without placing evidence on record that goods were not received would, not sufficient to rebut the evidence, which is in favour of the complainant under Section 139 of the Negotiable Instruments Act, 1881.
3.Learned advocate Mr.Patel further draws the attention of the ledger book, which is reproduced in the judgment below Exhibit 68 and 69 wherein it transpires that some of the payment was made through RTGS and ultimately the total amount, which is mentioned in the ledger book is matched with the cheque amount which was issued. Learned advocate Mr.Patel Page 2 of 3 Downloaded on : Thu Oct 12 20:41:16 IST 2023 NEUTRAL CITATION R/CR.MA/8884/2021 ORDER DATED: 10/10/2023 undefined further submits that though the complainant had proved the legally enforceable debt during the trial and though the accused failed to rebut the presumption, the trial court had acquitted the respondent-accused from the charges and committed grave error.
4.In view of above submissions, application for seeking leave to appeal is allowed. ORDER IN R/CRIMINAL APPEAL NO. 707 of 2021
1. Appeal is admitted. Learned advocate Mr.Hemant Raval waives service of notice of admission on behalf of respondents-original accused. Learned APP waives service of notice of admission on behalf of respondent-State. R & P be called for.
(M. K. THAKKER,J) M.M.MIRZA Page 3 of 3 Downloaded on : Thu Oct 12 20:41:16 IST 2023