Dhirajlal Kantilal Thakkar ... vs State Of Gujarat
2023 Latest Caselaw 2777 Guj

     R/CR.MA/5240/2023                                ORDER DATED: 05/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 5240 of 2023

                    In R/CRIMINAL APPEAL NO. 693 of 2023

                                       With
                         R/CRIMINAL APPEAL NO. 693 of 2023
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 DHIRAJLAL KANTILAL THAKKAR PROPRIETOR OF KANTILAL AND CO.
                            Versus
                      STATE OF GUJARAT
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Appearance:
MR BHAVESH P TRIVEDI(2731) for the Applicant(s) No. 1
MR RR TRIVEDI(941) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS CM 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. Heard Mr. Bhavesh Trivedi, learned advocate for the applicant - original complainant.

2. Rule returnable forthwith. Learned APP waives service of Rule on behalf of the respondent No.1 State.

3. This is an application filed under Section 378(4) of the Code of Criminal Procedure, challenging the judgment and order of acquittal dated 10.01.2023 passed by the learned Principal Civil Judge & Judicial Magistrate First Class, Harij, in Criminal Case No.989 of 2021 recording the acquittal against the respondent Nos.2 and 3 for the offence punishable under Section 138 of the Negotiable Instruments Act.

R/CR.MA/5240/2023 ORDER DATED: 05/04/2023

4. Mr. Trivedi, learned advocate for the applicant has invited attention of this Court to the findings and reasons recorded by the learned Magistrate. He has further invited attention of this Court to the copy of the reply given by the accused to the legal notice dated 24.07.2021. He has also referred to the statement of accused recorded under Section 313 of the Cr.P.C. and has submitted that at the first instance, the accused had come with defence that the disputed cheque was issued as security cheque. The complainant had deposited such cheque without instructions from the accused. On the other hand, in the cross-examination of the complainant, the accused had raised defence that the disputed cheque was given as security to the sister concern of the complainant, which was misused by the complainant. He further submitted that in fact, from the bare reading of the contents of the reply, the accused have acknowledged business relations and transactions with regard to the purchase of firewood from the complainant. The corroborating materials in the form of ledger book account has been produced on record by the complainant which is exhibited as Exhibit 27. He, therefore, submitted that the learned trial Court has committed serious error by recording that the goods were supplied by the sister concern and has shifted burden of proof upon the complainant. He, therefore, urged this Court to grant leave to appeal.

5. Considering the aforesaid submissions and the grounds raised in the memo of appeal, prima facie, leave to appeal requires consideration. Hence, the leave to challenge the impugned judgment and order of acquittal is hereby granted. Rule is made absolute.

R/CR.MA/5240/2023 ORDER DATED: 05/04/2023

CRIMINAL APPEAL NO. 693 of 2023

ADMIT. Learned APP waives service of notice of admission on behalf of the respondent No.1 State.

Issue bailable warrant of in the sum of Rs.10,000/- each against private respondents.

R & P to be called for.

(NISHA M. THAKORE,J) Y.N. VYAS