Panchal Sanat Hasmukhbhai vs State Of Gujarat
2023 Latest Caselaw 3102 Guj

      R/CR.MA/22939/2021                            ORDER DATED: 20/04/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 22939 of 2021

                     In R/CRIMINAL APPEAL NO. 2026 of 2021

                                     With
                       R/CRIMINAL APPEAL NO. 2026 of 2021
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                           PANCHAL SANAT HASMUKHBHAI
                                     Versus
                                STATE OF GUJARAT
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Appearance:
MR HARSH N PAREKH(6951) for the Applicant(s) No. 1
PRIYAL M PARIKH(7593) for the Applicant(s) No. 1
MS. C.M. SHAH, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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     CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                Date : 20/04/2023

                                  ORAL ORDER

ORDER IN R/CRIMINAL MISC.APPLICATION NO. 22939 of 2021

1. Though rule has been duly served upon the respondent No.2-

accused, he has chosen not to appear before this Court or contest the

present application.

2. Heard Ms. Priyal M. Parikh, learned advocate on record for the

applicant-original complainant and Ms. C.M. Shah, learned APP

appearing for the respondent-State.

3. This is an application preferred seeking leave to appeal under

R/CR.MA/22939/2021 ORDER DATED: 20/04/2023

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

acquittal dated 11.12.2020 passed by learned Principal Senior civil

Judge & Additional Chief Judicial Magistrate at Padra, Vadodara in

Criminal Case No.2476 of 2018. By the said judgment and order, the

learned Magistrate has recorded order of acquittal of respondent

No.2 for the offence under Section 138 of the N.I. Act.

4. Ms. Priyal M. Parikh, learned advocate on record for the

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

the reasons recorded by the trial court. She has submitted that the

learned Magistrate has shifted the burden upon the original

complainant in absence of any rebuttal of presumption, which was

otherwise drawn in favour of the original complainant. In absence of

any challenge to the signature on the disputed cheque, she has

submitted that the learned trial court has unnecessary given

importance to the fact that the complainant holds the license to lend

money and no material has been brought on record to indicate the

fact that the complainant was in the business of jewelry as contended

in the complaint. In fact, in the cross-examination of the complainant,

it has clearly emerged that he was doing business in the name of Tulja

Jewelers and the accused was doing business in the name of Banshi

Shankarbhai Gandhi. She has further invited attention of this Court to

the defence raised by the accused as reproduced in the impugned

R/CR.MA/22939/2021 ORDER DATED: 20/04/2023

order, even the accused has not disputed the fact that the

complainant and the accused were in the same business and were

having past transaction. She has further submitted that mere defence

was raised with regard to the disputed cheque being misused by the

complainant, no substantive evidence has been brought on record as

regards the same. She therefore, urged this Court to grant leave to

appeal.

5. Considering the submissions made by the learned advocate on

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

appeal, prima facie, the Court finds that the presumption had arisen

in favour of the complainant as regards the existence of legally

enforceable debt existing between the parties in absence of any

challenge to the signature on the disputed cheque. In absence of any

cogent material being brought on record contradicting the case of the

complainant, the learned trial court unnecessary shifted the burden

upon the complainant to prove his case. Hence, present application

seeking leave to appeal requires consideration and the same is

allowed. Rule is made absolute.

ORDER IN R/CRIMINAL APPEAL NO. 2026 of 2021

1. ADMIT.

R/CR.MA/22939/2021 ORDER DATED: 20/04/2023

2. Learned APP waives service of notice of admission for and on

behalf of respondent-State.

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

accused.

4. Respondent-accused be served through concerned police

station.

5. Registry is hereby directed to call for Record & Proceedings

forthwith.

(NISHA M. THAKORE,J) SUYASH SRIVASTAVA