Gujarat High Court
Bhaveshbhai Mansukhbhai Gandhi vs Rakesh Dushyantbhai Shukal on 31 January, 2024
NEUTRAL CITATION
R/CR.MA/16621/2023 ORDER DATED: 31/01/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 16621
of 2023
In R/CRIMINAL APPEAL NO. 259 of 2024
With
R/CRIMINAL APPEAL NO. 259 of 2024
==========================================================
BHAVESHBHAI MANSUKHBHAI GANDHI Versus RAKESH DUSHYANTBHAI SHUKAL ========================================================== Appearance:
MR JAY BAROT FOR MR HARDIK A DAVE(3764) for the Applicant(s) No. 1 MR VISHAL T. PATEL(6518) for the Respondent(s) No. 1 MS MONALI BHATT, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 2 ========================================================== CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER Date : 31/01/2024 ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 16621 of 2023
1. Learned advocate Mr.Jay Barot for the applicant submits that though the demand notice was not replied neither complied and though the signature on the cheque was not disputed by the respondent-accused, the learned trial Court has passed the judgment and order of the acquittal. Learned advocate Mr.Mr.Jay Barot has read the statement, which was recorded under Section 313 of the Code of Criminal Procedure, 1973. wherein the defence was taken that the cheque was issued for the payment of the insurance premium of the brother and the complainant is doing the business of Tata Insurance and Page 1 of 3 Downloaded on : Wed Jan 31 20:51:52 IST 2024 NEUTRAL CITATION R/CR.MA/16621/2023 ORDER DATED: 31/01/2024 undefined that cheque was misused.
2. Learned advocate Mr.Mr.Jay Barot has drawn the attention of this Court with regard to the cross examination of the complainant wherein not a single question was put with regard to the defence which was stated in the further statement. Learned advocate has also drawn the attention of this Court with regard to the observations made by the learned trial Court wherein the learned trial Court has also admitted the business relations of the complainant and the respondent-accused. The ledger account which was produced by the complainant below Exhibit 7 was also not rebutted by the respondent-
accused. Learned trial Court has discarded the evidence of Exhibit 7 only on the ground that there was a discrepancy in the amount.
3. Learned advocate Mr.Mr.Jay Barot submits that while giving the acquittal, the learned trial Court has observed that onus would not shift to anyone except the complainant to prove his case. Learned advocate Mr.Mr.Jay Barot submits that though presumption under Sections 118 and 139 of the Negotiable Instruments Act, Page 2 of 3 Downloaded on : Wed Jan 31 20:51:52 IST 2024 NEUTRAL CITATION R/CR.MA/16621/2023 ORDER DATED: 31/01/2024 undefined 1886 is in favour of the complainant with regard to the issuance of the cheque for discharging his legally enforceable debt and though said presumption is not rebutted by the respondent-accused by creating probable defence, the judgment and order of acquittal was passed.
4. Considering the submissions, this Court deems it fit to allow this application for seeking leave to prefer an appeal. Hence, present application is allowed. Leave to prefer an appeal is granted. Rule is made absolute accordingly.
ORDER IN R/CRIMINAL APPEAL NO. 259 of 2024
1. The appeal is admitted. Learned advocate Mr.Vishal Patel 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.
2. Record and Proceedings shall be called for. Matter be listed in seriatim.
(M. K. THAKKER,J) M.M.MIRZA Page 3 of 3 Downloaded on : Wed Jan 31 20:51:52 IST 2024