Rupabharathi Chamanbharathi ... vs State Of Gujarat
2023 Latest Caselaw 2773 Guj

   R/CR.MA/5555/2023                                     ORDER DATED: 05/04/2023




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
          R/CRIMINAL MISC.APPLICATION NO. 5555 of 2023
              In R/CRIMINAL APPEAL NO. 757 of 2023

                                 With
                   R/CRIMINAL APPEAL NO. 757 of 2023
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               RUPABHARATHI CHAMANBHARATHI BAWA
                             Versus
                       STATE OF GUJARAT
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Appearance:
MR JANAK D VARDEY(10910) for the Applicant(s) No. 1
for the Respondent(s) No. 2
Ms. C.M. Shah, Addl. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
                  Date : 05/04/2023
                    ORAL ORDER

1.0. Heard Mr. Janak Vardey, learned advocate for the applicant - original complainant. Issue Rule, making it returnable forthwith. Ms. Shah, learned Additional Public Prosecutor waives service of Rule on behalf of the Respondent State.

2.0. This is an application filed under Section 378(4) of the Code of Criminal Procedure seeking leave to appeal against the impugned judgment and order of acquittal dated 13.03.2023 passed by the learned 4th Additional Chief Judicial Magistrate, First Class, Deesa in Criminal Case No.2347 of 2021. By the said judgment and order, the learned Magistrate has recorded acquittal of respondent no.2 for the offences punishable under Section 138 of the Negotiable Instruments Act, 1881.

R/CR.MA/5555/2023 ORDER DATED: 05/04/2023

3.0. Mr. Janak Vardey, learned advocate for the applicant has invited attention of this Court to the findings and reasons recorded by the learned Magistrate while recording order of acquittal. He has invited attention of this Court to the oral arguments of the learned advocate for the accused and has further drawn attention of this Court to the cross-examination of the complainant. He has submitted that the learned trial Court has relied upon the false submission made by accused wherein accused has tried to raise case that the applicant had transferred amount of Rs.5 lakhs in the Bank Account of one Yogeshbhai Solanki and the said Yogeshbhai Solanki has withdrawn said amount. Hence, it was contended that no transaction existed with accused. Resultantly, the learned Magistrate has accepted the aforesaid doubt raised by the accused. He has further submitted that the learned Magistrate ought to have drawn presumption in favour of complainant about existence of legally enforceable debt against the accused when no defence had come on record on the side of the accused. He, therefore, urge this Court to grant leave to appeal.

4.0. Considering the submissions made by the learned advocate for the applicant and the grounds raised in the memo of appeal, prima facie, the Court is of the view of that in absence of any denial of signature on the cheque in question, more particularly, when the cheque was returned with an endorsement of "Today's Opening Balance is insufficient", the presumption ought to have been drawn in favour of the complainant with regard to existence of legally enforceable debt. In absence of any cogent material being brought on record by the accused, the presumption

R/CR.MA/5555/2023 ORDER DATED: 05/04/2023

continued in favour of complainant. The matter is required to be closely examined. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted. Rule is made absolute to the aforesaid extent.

Order in Criminal Appeal:

Admit. Ms. Shah, learned Additional Public Prosecutor waives service of admission on behalf of the Respondent State. Issue bailable warrant in sum of Rs.10,000/- against private respondent no.2. Respondent no.2 be served through the concerned police Station. Registry is directed to call for the Record and Proceedings of the case from the concerned Court.

(NISHA M. THAKORE,J) KAUSHIK J. RATHOD