Gujarat High Court
Girishbhai Jadavlal Mistry vs Rajeshbhai Jayantibhai Shah on 18 April, 2022
Bench: Rajendra M. Sareen
R/CR.MA/5587/2020 ORDER DATED: 18/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5587 of 2020
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GIRISHBHAI JADAVLAL MISTRY
Versus
RAJESHBHAI JAYANTIBHAI SHAH
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Appearance:
MR NIRAV C THAKKAR(2206) for the Applicant(s) No. 1
MR.MINHAJ M SHAIKH(6847) for the Respondent(s) No. 1
MR RC KODEKAR APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 18/04/2022
ORAL ORDER
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 Additional Chief Judicial Magistrate, Petlad
dated 01.01.2020 in Criminal Case No. 900 of 2017,
whereby the learned Magistrate was pleased to acquit the
respondent accused for the offence under section 138 of the
Negotiable Instruments Act.
2. Heard Mr.Nirav C. Thakkar, leaned advocate for the
applicant. He has submitted that the respondent accused
had given cheque signed by him and on account of the
insufficient amount, the cheque was dishonoured and hence
offence under section 138 of the N.I. Act has been made
out, but the trial court has not believed the case of the
complainant and acquitted the accused. He has also
submitted that there was no defence on the part of the
respondent accused that he has not taken loan or he has
R/CR.MA/5587/2020 ORDER DATED: 18/04/2022
not given cheque in favour of the complainant nor the
cheque was dishonoured or notice was not served upon the
respondent accused. As such all the ingredients of offence
under section 138 of the N.I. Act are fulfilled, however, the
trial court has erroneously acquitted the respondent
accused hence the order of the trial court is perverse and
illegal and hence he has prayed to grant leave to appeal, as
there is arguable case in favour of the complainant.
2.1. Mr.Minaj Shaikh, learned advocate for the respondent
accused has submitted that the trial court after
appreciating the evidence on record in its right perspective
has acquitted the respondent accused. He has submitted
that the complainant failed to prove legal debt as ageainst
the respondent accused and no illegality has been
committed by the trial court. He has submitted that the
impugned judgement is just, proper and legal and no
interference is required. Hence he has prayed not to grant
leave to appeal.
3. Considering the avernments made in the application
and submissions made by the learned advocates appearing
for the respective parties and considering the fact that
there is arguable point and the issue requires consideration,
leave, as prayed for, is granted. This application is allowed.
Rule is made absolute accordingly.
Registry is directed to register the main Appeal and
notify the same for hearing after four weeks.
(RAJENDRA M. SAREEN,J)
R.H. PARMAR.
