Gujarat High Court
Ravibhai Rameshbhai Rupapara ... vs State Of Gujarat on 10 April, 2023
Bench: Nisha M. Thakore
R/CR.MA/4413/2023 ORDER DATED: 10/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4413 of 2023
In R/CRIMINAL APPEAL NO. 508 of 2023
With
R/CRIMINAL APPEAL NO. 508 of 2023
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RAVIBHAI RAMESHBHAI RUPAPARA PROP. OF DHANANJAY
FASHION
Versus
STATE OF GUJARAT
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Appearance:
MR JIGAR L PATEL(11596) for the Applicant(s) No. 1
for the Respondent(s) No. 2
Mr. Bhargav Pandya, Addl.PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 10/04/2023
ORAL ORDER
1.0. Heard Mr. Jigar L Patel, learned advocate for the
applicant- original complainant. Issue Rule making it returnable
forthwith. Mr. Bhargav Pandya, learned Additional Public
Prosecutor waives service of Rule on behalf of the respondent-
State.
2.0. This is an application seeking leave to challenge the
impugned judgment and order of acquittal dated 27.12.2022
passed by the learned Additional Chief Judicial Magistrate,
Surat in Criminal Case No.4554 of 2017, whereby, the learned
Magistrate has recorded order of acquittal of respondent no.2-
accused for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881.
R/CR.MA/4413/2023 ORDER DATED: 10/04/2023
3.0. Mr. Patel, learned advocate for the applicant- original
complainant has invited attention of this Court to the findings
and reasons recorded by the learned Magistrate while recording
order of acquittal of respondent no.2- original accused. He has
submitted that there is no dispute with regard to the signature of
the accused on the disputed cheque. The learned trial Court
ought to have raised the presumption in favour of the
complainant under Section 118 A and Section 139 of the
Negotiable Instruments Act. He has submitted that it is the case
of the complainant that being proprietor of the Dhananjay
Fashion, accused and the complainant were knowing each other
since long. Considering request of the accused, amount of Rs.9
lakhs was withdrawn by the complainant and was given as hand
loan to the accused. He has placed on record the application
Exh.36 which was submitted by the original complainant
seeking permission of the trial Court to place on record the
relevant document, which is the copy of the Income Tax Return
along with the schedule of trading and profit and loss account
for the concerned Financial Year. By referring to the aforesaid
document, he has submitted that under the head of loan and
advance reference was made about such hand loan being given
to the respondent no.2- accused. However, the trial Court failed
to appreciate the aforesaid document and proceeded to record
the order of acquittal.
4.0. Considering the submissions made by the learned advocate
for the applicant- original complainant and the grounds raised
in the memo of appeal, prima facie, the Court finds that in
absence of dispute being raised with regard to signature on the
R/CR.MA/4413/2023 ORDER DATED: 10/04/2023
disputed cheque, the statutory presumption had arisen in favour
of the original complainant with regard to existence of legally
enforceable debt as on the date of presentation of the cheque.
Though, the defence was raised at the stage of cross examination
of the complainant and material had come on record to prove the
case beyond reasonable doubt, the matter requires
consideration. Hence, the present application is allowed and
Leave to Appeal, as prayed for, is hereby granted.
Order in Criminal Appeal
The appeal is admitted. Learned Additional Public
Prosecutor waives service of notice of admission on behalf
of 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
