Rushabhbhai Gayaprasad Jain vs State Of Gujarat
2023 Latest Caselaw 2967 Guj

      R/CR.MA/23653/2022                             ORDER DATED: 17/04/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 23653 of 2022

                     In R/CRIMINAL APPEAL NO. 2331 of 2022

                                     With
                       R/CRIMINAL APPEAL NO. 2331 of 2022
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                           RUSHABHBHAI GAYAPRASAD JAIN
                                     Versus
                                STATE OF GUJARAT
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Appearance:
MS. MEGHA JANI FOR MR ARJUN M JOSHI(11247) for the Applicant(s) No. 1
MR NAYAN B JOSHI(3827) for the Respondent(s) No. 2
MR VISHAL B MEHTA(5319) for the Respondent(s) No. 2
MR. BHARGAV PANDYA, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                 Date : 17/04/2023

                                   ORAL ORDER

ORDER IN R/CRIMINAL MISC.APPLICATION NO. 23653 of 2022

1. Heard learned advocate Ms. Megha Jani appearing on behalf of

Mr. Arjun M. Joshi, learned advocate on record for the applicant-

original complainant, Mr. Vishal B. Mehta, learned advocate on record

for the respondent No.2- original accused and Mr. Bhargav Pandya,

learned APP appearing for the respondent-State.

2. Rule returnable forthwith. Learned advocate Mr. Vishal B.

Mehta waives service of notice of rule for and on behalf of respondent

No.2 and learned APP Mr. Bhargav Pandya waives service of notice of

R/CR.MA/23653/2022 ORDER DATED: 17/04/2023

rule on behalf of respondent-State.

3. This is an application seeking leave to appeal filed under Section

378(4) of Cr.P.C., 1973, challenging the judgment and order of

acquittal dated 13.04.2022 passed by learned Additional Chief

Metropolitan Magistrate, N.I. Act Court, Ahmedabad in Criminal Case

No.38000802 of 2015. By the said judgment and order, the learned

Magistrate has recorded order of acquittal of respondent No.2 for the

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

4. Learned advocate Ms. Megha Jani appearing on behalf of Mr.

Arjun M. Joshi, 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 while recording the order of

acquittal. She has placed reliance upon the documents, forming part

of the record, which is placed for consideration before this Court in

the form of paper book. She has referred to the defence raised by the

accused by way of further statement recorded at the stage of Section

313 of Cr.P.C. and has submitted that the accused had raised specific

defence of disputed cheque being furnished as security cheque

towards the realization of the amount of Rs.40 lakhs, which was

agreed to be paid towards the settlement of the land transaction. She

has further invited attention of this Court to the schedule of such

R/CR.MA/23653/2022 ORDER DATED: 17/04/2023

amount agreed between the parties, which has come on record in the

form of declaration dated 01.11.2012 and has submitted that the

aforesaid amount of Rs.40 Lakhs was in fact realized by the

complainant as agreed upon, which is further corroborated from the

bank statement account produced on record vide Exh.23 and Exh.24.

She therefore, submitted that the story got up by the defence with

regard to the security cheque is without any basis. She therefore,

urged this Court to grant leave to appeal.

5. On the other hand, Mr. Vishal B. Mehta, learned advocate on

record for the respondent No.2- original accused, has strongly

objected to grant of leave to appeal. He has invited attention of this

Court to the declaration executed by the original complainant and has

submitted that the complainant has clearly declared that no further

amount is required to be realized in respect of said land transaction.

He therefore, submitted that strong probable defence was raised by

the accused and the learned trial court has rightly shifted burden upon

the complainant to prove his case beyond reasonable doubt. He has

further submitted that the trial court has rightly recorded the order of

acquittal and the present appeal may summarily rejected.

6. Considering the submissions made by learned advocates

appearing for the respective parties and having gone through the

R/CR.MA/23653/2022 ORDER DATED: 17/04/2023

impugned judgment and order as well as the grounds raised in the

memo of appeal, prima faice, the Court finds that though such amount

being realized as acknowledged by the applicant-original complainant

in the form of declaration, the post issuance of cheque after the

execution of the declaration, is required to be closely scrutinized as

regards the very existence of legally enforceable debt as on the date

of presentation of cheque, has to be presumed as provided under

Section 139 of the N.I. Act. Hence, present application for leave to

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

absolute.

ORDER IN R/CRIMINAL APPEAL NO. 2331 of 2022

ADMIT.

Learned advocate Mr. Vishal B. Mehta waives service of notice

of admission for and on behalf of respondent No.2 and learned APP

Mr. Bhargav Pandya waives service of notice of admission on behalf of

respondent-State.

Registry is directed to call for record and proceedings from the

concerned trial court forthwith. Appeal is expedited.

(NISHA M. THAKORE,J) SUYASH SRIVASTAVA