NEUTRAL CITATION
R/CR.MA/18486/2023 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. 18486
of 2023
In R/CRIMINAL APPEAL NO. 2330 of 2023
With
R/CRIMINAL APPEAL NO. 2330 of 2023
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MANOJBHAI DALSABHAI PATEL
Versus
DHARMENDRAKUMAR PRAHALADBHAI SONI
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Appearance:
MR HARDIK C RAWAL(719) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS DIVYANGNA JHALA, ADDL.PUBLIC PROSECUTOR for the
Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 13/10/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 18486 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 Chief Judicial Magistrate (First Class), Patan dated 03.08.2023 in Criminal Case No.1789 of 2018.
2. Learned advocate Mr.Raval for the applicant submits that the learned trial Court had committed a grave error in acquitting the respondent-accused on the sole ground that the complainant could not prove the financial Page 1 of 3 Downloaded on : Mon Oct 16 20:43:44 IST 2023 NEUTRAL CITATION R/CR.MA/18486/2023 ORDER DATED: 13/10/2023 undefined 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 discharged of, whole or part of any debt or liability."
3. Learned advocate Mr. Raval 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 the complainant under Section1 39 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, Page 2 of 3 Downloaded on : Mon Oct 16 20:43:44 IST 2023 NEUTRAL CITATION R/CR.MA/18486/2023 ORDER DATED: 13/10/2023 undefined which may not be legally enforceable. Thereafter only the burden would be shifted on the complainant.
4. 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.
5. In view of above submissions, the application for leave to appeal is required to be allowed. Hence, application is allowed.
ORDER IN R/CRIMINAL APPEAL NO. 2330 of 2023
1. The appeal is admitted. Learned APP waives service of notice of admission on behalf of the respondent-State.
2. Issue Bailable Warrant in the sum of Rs.5,000/- (Rupees Five Thousand Only) against the respondent-original accused.
3. R & P be called for. The matter be listed in seriatim.
(M. K. THAKKER,J) M.M.MIRZA Page 3 of 3 Downloaded on : Mon Oct 16 20:43:44 IST 2023