Manubhai Govindbhai Prajapati vs State Of Gujarat
2023 Latest Caselaw 3100 Guj

      R/CR.MA/16594/2021                              ORDER DATED: 20/04/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 16594 of 2021

                     In R/CRIMINAL APPEAL NO. 1332 of 2021

                                     With
                       R/CRIMINAL APPEAL NO. 1332 of 2021
==========================================================
                           MANUBHAI GOVINDBHAI PRAJAPATI
                                      Versus
                                 STATE OF GUJARAT
==========================================================
Appearance:
HARSHADKUMAR D PANCHAL(9015) for the Applicant(s) No. 1
MR V B MALIK(5071) for the Respondent(s) No. 2
MR. BHGARGAV PANDYA, APP for the Respondent(s) No. 1
==========================================================

     CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                  Date : 20/04/2023

                                    ORAL ORDER

ORDER IN R/CRIMINAL MISC.APPLICATION NO. 16594 of 2021

1. Heard Mr. Harshadkumar D. Panchal, learned advocate on

record for the applicant-original complainant, Mr. V.B. Malik, learned

advocate on record for the respondent No.2-original accused and Mr.

Bhargav Pandya, learned APP appearing for the respondent-State.

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

seeking leave to challenge the judgment and order of acquittal dated

17.07.2021 passed by learned Additional Judicial Magistrate First

Class, Sami, District- Patan in Criminal Case No.310 of 2019, acquitting

R/CR.MA/16594/2021 ORDER DATED: 20/04/2023

the respondent No.2-original accused for the offence alleged to have

been committed under Section 138 of the N.I. Act.

3. Mr. Harshadkumar D. Panchal, learned advocate on record for

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

to the case of the complainant. He has drawn attention of this Court

to the reasons recorded by the trial court and has submitted that the

learned Magistrate failed to appreciate the document in the nature of

undertaking drawn on Rs.100/- stamp paper signed by the present

accused, which is brought on record as Exh.16, in which, the accused

had acknowledged the fact of having received of an amount of Rs.20

Lakhs in the scheme wherein the complainant had introduced 135

members. He has further invited attention of this Court to Section 313

of Cr.P.C. statement reproduced in the impugned order and has

submitted that at no stage, the dispute was raised with regard to the

signature on the disputed cheque, the contents of the cheque being

varied, no reply was given to the legal notice addressed to the

accused, though the notice was duly served upon the accused through

Registered Post A.D. He therefore, has submitted that presumption

available under the law as regard existence of the legal debt, has been

established. He has further submitted that the learned Magistrate has

not properly appreciated the aforesaid documents brought on record

by the complainant, which otherwise clearly goes to prove the offence

R/CR.MA/16594/2021 ORDER DATED: 20/04/2023

under Section 138 of the N.I. Act. He therefore, urged this Court to

grant leave to appeal.

4. Mr. V.B. Malik, learned advocate on record for the respondent

No.2-original accused, has objected to grant of leave to appeal. He has

submitted that the learned Magistrate arrived at a conclusion that the

complainant has failed to establish the existence of legal debt

between the parties.

5. Considering the submissions made by learned advocates

appearing for the respective parties and having examined the

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

memo of appeal, prima facie, the Court finds that the case needs to

be closely scrutinized in context with the provisions of Section 139 of

the N.I. Act, more particularly, in absence of any dispute being raised

with regard to the signature on the disputed cheque and the contents

thereof, the presumption would be available in law in favour of the

complainant. The question needs to be examined as regards the

existence of legal debt between the parties as on the date of

presentation of the cheque. Hence, present application seeking leave

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

made absolute.

     R/CR.MA/16594/2021                         ORDER DATED: 20/04/2023




ORDER IN R/CRIMINAL APPEAL NO. 1332 of 2021

       ADMIT.

Learned APP waives service of notice of admission for and on

behalf of respondent-State and learned advocate Mr. V.B. Malik,

waives service of notice of admission for and on behalf of the

respondent No.2-original accused.

Registry is directed to see to it that paper book is made

available.

(NISHA M. THAKORE,J) SUYASH SRIVASTAVA