NEUTRAL CITATION
R/CR.MA/17138/2023 ORDER DATED: 26/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17138 of 2023
In F/CRIMINAL APPEAL NO. 34662 of 2023
==========================================================
NIKUNJBHAI KOSHORBHAI MAKHANIA
Versus
CHETANBHAI MANHARBHAI PATEL
==========================================================
Appearance:
MR ISHAN R VYAS(10865) for the Applicant(s) No. 1
MR PREM D DAVE(10958) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS VRUNDA SHAH ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 2
==========================================================
CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 26/09/2023
ORAL ORDER
1. Heard Mr. Prem Dave, learned advocate for the applicant - original complainant.
2. Rule. Learned APP waives service of Rule on behalf of the respondent No.2 - State.
3. Learned advocate for the applicant has invited attention of this Court to the reasons assigned by the learned Magistrate, while recording the impugned order of acquittal. The reference is made to the Memorandum of Understanding between the parties, which has been produced on record before the learned trial Court vide Exhibit 7. It is submitted by the learned advocate that the accused has not challenged the genuineness and authenticity of the said MoU between the complainant and respondent - original accused. By referring to the recitals of the said MoU, it is submitted by the Page 1 of 3 Downloaded on : Tue Sep 26 20:50:40 IST 2023 NEUTRAL CITATION R/CR.MA/17138/2023 ORDER DATED: 26/09/2023 undefined learned advocate that the respondent - accused has acknowledged the debt of the amount of Rs.61 Lakhs owned by him towards present applicant - original complainant. It is, therefore, submitted by the learned advocate that the factum of debt of Rs.61 Lakhs being owned by the respondent - accused has been duly proved and established before the learned trial Court. The learned advocate has submitted that the defence raised by the respondent - accused that against the amount of Rs.15 Lakhs, the cheques were handed over by way of security and except for an amount of Rs.2 Lakhs towards the interest, remaining amount being paid, has not been accepted by the learned trial Court. It is further submitted that on the other hand, the learned Magistrate has entered into arena of the issue of financial capacity of the original complainant. Learned advocate has relied upon the judgment of Tedhi Singh Vs. Narayan Dass Mahant reported in (2022) 6 Supreme Court Cases 735 and has contended that the learned Magistrate committed serious error, while examining the aforesaid issue, without appreciating the fact that the respondent - original accused has failed challenge the financial capacity of the original complainant at the very first instance, while responding to the legal notice issued under Section 138 of the Negotiable Instruments Act. By making aforesaid submissions, learned advocate has urged this Court to grant leave to appeal.
4. Heard learned advocate appearing for the applicant and having perused the reasons assigned by the learned Magistrate, prima facie, this Court finds that the learned Magistrate misdirected himself, while examining the issue of financial capacity in absence of any challenge to the MoU acknowledging the debt of Page 2 of 3 Downloaded on : Tue Sep 26 20:50:40 IST 2023 NEUTRAL CITATION R/CR.MA/17138/2023 ORDER DATED: 26/09/2023 undefined RS.61 Lakhs. Also prima facie, the Court notices that approach of learned Magistrate was de hors the principle laid down by the Hon'ble Apex Court in the case of Tedhi Singh (Supra). In the opinion of this Court, an arguable case is made out for consideration of admission of the appeal. Hence, present application seeking leave to appeal is hereby granted. Rule is made absolute.
(NISHA M. THAKORE,J) Y.N. VYAS Page 3 of 3 Downloaded on : Tue Sep 26 20:50:40 IST 2023