Salim Hamidbhai Memon Thro Poa ... vs State Of Gujarat
2022 Latest Caselaw 4777 Guj

     R/CR.MA/6302/2022                                ORDER DATED: 05/05/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 6302 of 2022
                  In R/CRIMINAL APPEAL NO. 662 of 2022

                                       With
                         R/CRIMINAL APPEAL NO. 662 of 2022
==========================================================
SALIM HAMIDBHAI MEMON THRO POA JAVEDBHAI HAMIDBHAI MEMON
                          Versus
                    STATE OF GUJARAT
==========================================================
Appearance:
MR.NANDISH H THACKAR(7008) for the Applicant(s) No. 1
MR DK DAVE for the Respondent No.2
NOTICE SERVED for the Respondent(s) No. 2
MR RC KODERKAR APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                                  Date : 05/05/2022

                                   ORAL ORDER

Order in Criminal Misc. Application:

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 21st Additional Chief Judicial Magistrate,

Vadodara dated 03.03.2022 in Criminal Case No.10121 of

2020, by which the learned Judge acquitted the respondent

accused for the offence under section 138 of the Negotiable

Instruments Act.

R/CR.MA/6302/2022 ORDER DATED: 05/05/2022

2. Mr.Nandish Thacker, learned advocate for the

applicant has submitted that the trial court has wrongly

acquitted the respondent accused and though the trial court

believed the legally enforceable debt, the trial court

acquitted the accused and committed a grave error. He has

submitted that there are arguable issues and hence leave

may be granted.

2.1. Per contra, Mr.D.K. Dave, learned advocate for the

respondent accused has supported the order of the trial

court and has submitted that the trial court has rightly

believed that the ingredients of section 138 of the Negotiable

Instruments Act are not proved by the complainant and on

appreciation of evidence, the trial court has rightly acquitted

the accused. It is also submitted that the cheques were

misused by the complainant and there was no legally

enforciable debt and hence it is prayed to reject the

application for leave to appeal.

3. Heard learned advocate Mr. Nandish Thackar for the

applicant, learned advocate Mr.D.K. Dave for the

respondent accused and learned APP Mr. R.C. Kodekar for

R/CR.MA/6302/2022 ORDER DATED: 05/05/2022

respondent - State and perused the impugned judgment

and order of the trial Court.

4. Considering the avernments made in the application

and submissions made by the learned advocates appearing

for the respective parties, leave, as prayed for, is granted.

This application is allowed. Rule is made absolute

accordingly.

Order in Criminal Appeal:

Mr.D.K. Dave, learned advocate appearing for the

respondent accused seeks time to file objections against the

admission of the appeal. Hence, S.O. to 14/07/2022.

(RAJENDRA M. SAREEN,J) R.H. PARMAR