Proprietor Of Balvi Enterprise ... vs Rajeshbhai Prabhudas ...
2023 Latest Caselaw 2906 Guj

      R/CR.MA/3282/2023                               ORDER DATED: 12/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 3282 of 2023

                      In R/CRIMINAL APPEAL NO. 370 of 2023

                                       With
                          R/CRIMINAL APPEAL NO. 370 of 2023
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     PROPRIETOR OF BALVI ENTERPRISE KRUNALBHAI DILIPBHAI MANGI
                              Versus
               RAJESHBHAI PRABHUDAS JUNJUVADIYA
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Appearance:
MR. D.V. KANSARA FOR MR PREMAL S RACHH(3297) for the Applicant(s) No.
1
for the Respondent(s) No. 1
MS. CHETNA SHAH, APP for the Respondent(s) No. 2
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     CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                  Date : 12/04/2023

                                    ORAL ORDER

ORDER IN R/CRIMINAL MISC. APPLICATION NO. 3282 of 2023

1. Heard learned advocate Mr. D.V. Kansara on behalf of Mr.

Premal S. Rachh, learned advocate on record for the applicant-original

complainant and Ms. Chetna Shah, learned APP appearing for the

respondent-State.

2. Rule returnable forthwith. Learned APP waives service of notice

of rule for and on behalf of respondent-State.

3. This is an application filed under Section 378(4) of Cr.P.C, 1973,

R/CR.MA/3282/2023 ORDER DATED: 12/04/2023

seeking permission of this Court to challenge the judgment and order

of acquittal dated 18.11.2022 passed by the learned 2 nd Additional

Chief Judicial Magistrate, Jamnagar in Criminal Case No.248 of 2020,

recording acquittal of respondent No.1-original accused for the

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

4. Learned advocate Mr. D.V. Kansara appearing for the applicant

has placed reliance upon the documents in the nature of Form 11-A

(Exh.28) and the agreement (Exh.12) and has submitted that the

learned Magistrate failed to appreciate the aforesaid document,

which otherwise goes to indicate that an amount of Rs.5 Lakhs was

disbursed to the accused. He has further relied upon the contents of

the agreement, which goes to suggest that the disputed cheuqe was

handed over by the accused for an amount of Rs. 5 Lakhs. He

therefore, urged this Court to grant leave to appeal

5. Considering the submissions made by learned advocate

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

appeal, prima facie, the Court finds that the evidence has come on

record to indicate that an amount of Rs.5 Lakhs was disbursed in

favour of the accused. In absence of any dispute with regard to the

signature on the disputed cheque, the presumption of the disputed

cheque being given towards the discharge of legally enforceable debt

R/CR.MA/3282/2023 ORDER DATED: 12/04/2023

or liability on the date of his presentation, ought to have been drawn

in favour of the complainant. Hence, present application requires

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

aforesaid extent.

ORDER IN R/CRIMINAL APPEAL NO. 370 of 2023

ADMIT.

Learned APP waives service of notice of admission for and on

behalf of respondent-State.

Issue bailable warrant of Rs. 10,000/- against private

respondent-accused

Private respondent-accused be served through concerned police

station.

Registry is hereby directed to call for Record & Proceedings

from the concerned trial court forthwith.

(NISHA M. THAKORE,J) SUYASH SRIVASTAVA