Imranbhai Ramjanbhai Sipahi vs State Of Gujarat
2023 Latest Caselaw 2778 Guj

      R/CR.MA/11049/2022                             ORDER DATED: 05/04/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 11049 of 2022

                     In R/CRIMINAL APPEAL NO. 1183 of 2022

                                     With
                       R/CRIMINAL APPEAL NO. 1183 of 2022
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                           IMRANBHAI RAMJANBHAI SIPAHI
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR RIDDHESH TRIVEDI(6581) for the Applicant(s) No. 1
MR.A J.OZA(3780) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 2
MS. CHETNA M. SHAH, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                 Date : 05/04/2023

                                   ORAL ORDER

ORDER IN R/CRIMINAL MISC.APPLICATION NO. 11049 of 2022

1. Heard Mr. Riddhesh Trivedi, learned advocate on record for the

applicant-original complainant, Mr. Mahendra U. Vora, learned

advocate for the respondent No.2 and Ms. Chetna M. Shah, learned

APP appearing for the respondent-State.

2. Rule returnable forthwith. Learned APP Ms. Chetna M. Shah

waives service of notice of rule for and on behalf of respondent-State

and learned advocate Mr. Mahendra U. Vora waives service of notice

R/CR.MA/11049/2022 ORDER DATED: 05/04/2023

of rule for and on behalf of respondent No.2.

3. This is an application seeking permission of this Court to file

leave to appeal to challenge the judgment and order of acquittal

dated 25.11.2019 passed by learned Additional Chief Judicial

Magistrate, N.I. Court, Tharad in Criminal Case No.315 of 2019. By the

said judgment and order, the learned Magistrate has proceeded to

record the order of acquittal of respondent No.2 for the offence

punishable under Section 138 of the N.I. Act.

4. Mr. Riddhesh Trivedi, learned advocate on record for the

applicant-original complainant, has invited attention of this Court to

the findings and reasons recorded by the trial court. He has submitted

that the learned Magistrate on erroneous footing has shifted burden

upon the original complainant to prove his case beyond reasonable

doubt and has failed to grant the benefit of presumption available

under the provisions of N.I. Act. He has further invited attention of

this Court to the Exh.20, which is an agreement executed between the

parties before the Notary on 29.09.2018, to which witness namely

Saheb Abidbhai Ahmedbhai, who has been examined by the

complainant vide Exh.24 as witness such document. He therefore,

urged this Court to grant present application for leave to appeal.

5. Considering the submissions made by learned advocate

R/CR.MA/11049/2022 ORDER DATED: 05/04/2023

appearing for the applicant and the grounds raised in the memo of

appeal, prima facie, the Court finds that the learned trial court has

ignored the document at Exh.20, which goes to establish on record the

fact that the accused has not even disputed the signature on the

cheque and has also not challenged the Exh.20 in the cross

examination of the said witness, which goes to indicate that amount in

dispute was received by the accused. Hence, present application

requires consideration and the same is allowed. Rule is made absolute

to the aforesaid extent.

ORDER IN R/CRIMINAL APPEAL NO. 1183 of 2022

ADMIT.

Learned APP Ms. Chetna M. Shah waives service of notice of

admission for and on behalf of respondent-State and learned

advocate Mr. Mahendra U. Vora waives service of notice of admission

for and on behalf of respondent No.2.

Registry is directed to call for record & proceedings from the

concerned court.

(NISHA M. THAKORE,J) SUYASH SRIVASTAVA