NEUTRAL CITATION
R/CR.MA/8395/2023 ORDER DATED: 13/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 8395 of
2023
In R/CRIMINAL APPEAL NO. 1044 of 2023
With
R/CRIMINAL APPEAL NO. 1044 of 2023
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PATEL CHIMANLAL GANGARAMBHAI
Versus
STATE OF GUJARAT
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Appearance:
MS GEETANJALI R SONERAO FOR MR VASANT R BAROT(5746) for the
Applicant(s) No. 1
MR MANISH J PATEL(2131) for the Respondent(s) No. 2
MS NAMRATA R MULCHANDANI(9956) for the Respondent(s) No. 2
MS DIVYANGNA ZHALA, ADDL.PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 13/10/2023
ORAL ORDER
ORDERIN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 8395 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, passed by the learned 3rd Additional Civil Judge and Judicial Magistrate First Class, Modasa dated 15.02.2023 in Criminal Case No.2900 of 2021.
2. Learned advocate Ms.Geetanjali Sonerao along with Mr.Barot for the applicant submits that the learned trial Court Page 1 of 3 Downloaded on : Wed Oct 18 20:35:59 IST 2023 NEUTRAL CITATION R/CR.MA/8395/2023 ORDER DATED: 13/10/2023 undefined had committed a grave error in acquitting the respondent- accused on the sole ground that the complainant could not prove the financial capacity to lend the money to the respondent-accused. Learned advocate further submits that under the Negotiable Instruments Act, 1881 ('the N.I.Act' hereinafter), two presumptions are provided; (1) under Section 118 and another is under Section 139. Under Section 118 of the N.I.Act it provides that "it is presumed, until the contrary is proved, that every transfer of negotiable instrument was made or drawn for consideration". Under Section 139 of the N.I.Act it provides that "unless the contrary is proved, it shall be presumed that the holder of the cheque received the cheque for the discharge of, whole or part of any debt or liability."
2. Learned advocate Ms.Geetanjali Sonerao further submits that in the present case, issuance of the cheque is not in dispute and signature is also not disputed by the respondent- accused. In that case, presumption would come into picture, which is in favour of complainant under Section 139 of the N.I.Act. It is for the accused to prove through the evidence, which would be in the nature of preponderance of the probabilities regarding the debt, which may not be legally Page 2 of 3 Downloaded on : Wed Oct 18 20:35:59 IST 2023 NEUTRAL CITATION R/CR.MA/8395/2023 ORDER DATED: 13/10/2023 undefined enforceable. Thereafter only the burden would be shifted on the complainant.
3. Instead of considering the above settled position, learned trial Court had immediately shifted the burden on the complainant to prove his financial capacity when the issuance of the cheque and signature was not disputed by the accused.
4. In view of above submissions, the application for leave to appeal is required to be allowed. Hence, application is allowed. Rule is made absolute accordingly.
ORDER IN R/CRIMINAL APPEAL NO. 1044 of 2023
1. The appeal is admitted. Learned APP waives service of notice of admission on behalf of the respondent-State and Mr.Manish Patel waives service of notice of admission on behalf of respondent No.2.
2. R & P be called for. Matter be listed in seriatim.
(M. K. THAKKER,J) M.M.MIRZA Page 3 of 3 Downloaded on : Wed Oct 18 20:35:59 IST 2023