Gujarat High Court
Bharat Credit Consu. Co Operative ... vs State Of Gujarat on 12 April, 2022
Bench: Rajendra M. Sareen
R/CR.MA/2585/2022 ORDER DATED: 12/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 2585 of 2022
In R/CRIMINAL APPEAL NO. 270 of 2022
With
R/CRIMINAL APPEAL NO. 270 of 2022
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BHARAT CREDIT CONSU. CO OPERATIVE SOCIETY LTD THRO
DHAVALBHAI VASANTBHAI KOTIYA
Versus
STATE OF GUJARAT
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Appearance:
MR MB PARIKH(576) for the Applicant(s) No. 1
DHARMESH D NANAVATY(2396) for the Respondent(s) No. 2
MR RC KODEKAR APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 12/04/2022
ORAL ORDER
Order in Criminal Misc. Application:
RULE. Mr.R.C. Kodekar, learned advocate waives
service of notice of rule for and on behalf of the respondent
No.1 and Mr.Dharmesh Nanavaty, learned advocate waives
service of notice of rule for and on behalf of the respondent
No.2.
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 2nd Additional Senior Civil Judge, Porbandar
dated 09.08.2021 in Criminal Case No. 3521 of 2018, by
which the learned Judge was pleased to acquit the
respondent accused for the offence punishable under
R/CR.MA/2585/2022 ORDER DATED: 12/04/2022
section 138 of Negotiable Instruments Act.
2. Mr.M.B. Parikh, learned advocate appearing for the
applicant has submitted that the respondent No.2 -
accused had taken loan from the applicant society and
failed to pay installments and thereafter the respondent
No.2 issue cheque towards full and final settlement which
was dishonoured and returned with endorsement of
"insufficient fund". Thereafter notice was served upon the
respondent No.2 which was not replied and hence case was
filed wherein acquittal order came to be passed by the trial
court. It is also submitted that the order passed by the trial
court is absolutely against the law and facts of the case and
findings recorded is contrary to the evidence on record. It is
submitted that the trial court failed to consider provisions of
section 138 and 139 of the N.I. Act. The respondent No.2
accused has not produced any documentary or oral
evidence in rebuttal and the trial court has passed the
erroneous order. It is submitted that there are various
contentions which are to be considered in appeal and there
are arguable points which shall be raised at the time of
appeal. As such, it is prayed to allow the application for
leave to appeal.
3. Per contra, Mr.Param Buch, learned advocate
appearing on behalf of Mr.Dharmesh Nanavaty for the
respondent No.2 accused has objected the leave to appeal
and and supported the judgement and order of acquittal
passed by the trial court. It is submitted that the trial court
has properly appreciated the evidence on record and has
passed finding of rebuttal properly and no error has been
R/CR.MA/2585/2022 ORDER DATED: 12/04/2022
committed by acquitting the respondent accused. As such,
there is no reason to allow the application for leave to
appeal. It is prayed to reject the application.
3. Considering the avernments made in the application
and submissions made by the learned advocates appearing
for the respective parties and as there are arguable points
which require consideration, leave, as prayed for, is granted.
This application is allowed. Rule is made absolute
accordingly.
Order in Criminal Appeal:
1. The appeal is admitted. Mr.R.C. Kodekar, learned
advocate waives service of notice of admission for and on
behalf of the respondent No.1 and Mr.Dharmesh Nanavaty,
learned advocate waives service of notice of admission for
and on behalf of the respondent No.2.
(RAJENDRA M. SAREEN,J)
R.H. PARMAR
