NEUTRAL CITATION
R/CR.MA/6497/2022 ORDER DATED: 11/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 6497 of
2022
In R/CRIMINAL APPEAL NO. 679 of 2022
With
R/CRIMINAL APPEAL NO. 679 of 2022
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RATHOD JAVIDBHAI AMIRBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR ANKUR Y OZA(2821) for the Applicant(s) No. 1
MS DIVYAGNA JHALA, APP for the Respondent(s) No. 1
VASIMRAJA A KURESHI(8609) for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 11/10/2023
COMMON ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION:
1. This is an application 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 Judicial Magistrate First Class, Shinor at Vadodara dated 06.05.2021 in Criminal Case No.408 of 2015. Page 1 of 4 Downloaded on : Wed Oct 11 20:52:37 IST 2023
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2. Heard, learned advocates appearing for respective parties and perused the impugned judgment and order of the trial Court.
3. Learned Advocate Mr. Ankur Oza for the applicant - complainant submits that while acquitting the respondent - accused, the learned trial Court had given more weightage to the minor discrepancies. Though the respondent - accused had not disputed the signature on the cheque, which was issued in favour of the complainant and no any evidence or the circumstance was led before the learned trial Court to rebut the presumption, which was in favour of the complainant under Section-139 of the N.I. Act, the judgment and order of the acquittal was passed by the learned trial Court. Learned trial Court had observed the minor discrepancies like the details in the cheque, was filled up by the same person or not; two cheques of the same date, cannot be possible to even issued by the respondent - accused; whether the cheque was deposited with the S.B.I., Sandhali branch or the Bank of Baroda etc. Though there was no any Page 2 of 4 Downloaded on : Wed Oct 11 20:52:37 IST 2023 NEUTRAL CITATION R/CR.MA/6497/2022 ORDER DATED: 11/10/2023 undefined evidence in the nature of preponderance of probabilities, was led by the respondent -accused for having the possession of cheque by the complainant. Learned advocate submitted that the learned trial Court had committed grave error in acquitting the respondent - accused from the alleged offence.
4. Considering the avernments made in the application and submissions made by the learned advocates appearing for the respective parties, there is some arguable case in favour of the applicant, leave, as prayed for, is granted. This application is allowed.
ORDER IN CRIMINAL APPEAL:
1. The appeal is admitted. Learned APP waives service of notice of admission on behalf of respondent - State. Learned advocate Mr. Vasim Raja on behalf of learned advocate Mr. M.M. Bukhari waives service of notice of admission for respondent - accused and therefore, no bailable warrant is required to be issued.
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2. Record and proceedings be called for from the concerned court.
3. Registry is directed to list the Criminal Appeal in seriatim.
(M. K. THAKKER,J) A. B. VAGHELA Page 4 of 4 Downloaded on : Wed Oct 11 20:52:37 IST 2023