Gujarat High Court
Ronakbhai Pramodbhai Patel vs Rupen Dinubhai Patel on 25 April, 2023
Bench: Nisha M. Thakore
R/CR.MA/7148/2022 ORDER DATED: 25/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7148 of 2022
In R/CRIMINAL APPEAL NO. 753 of 2022
With
R/CRIMINAL APPEAL NO. 753 of 2022
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RONAKBHAI PRAMODBHAI PATEL
Versus
RUPEN DINUBHAI PATEL
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Appearance:
MR. JAY K BAROT(9976) for the Applicant(s) No. 1
MS. C.M. SHAH, APP for the Respondent(s) No. 2
SERVED BY RPAD (N) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 25/04/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION NO. 7148 of 2022
1. This Court vide order dated 01.02.2023, had issued notice upon
the respondent No.1. The record reveals that the notice has been duly
served upon the respondent No.1. However, respondent No.1 has
chosen not to appear before this Court or to contest the present
application seeking leave to appeal filed by the original complainant.
2. Heard Mr. Jay Barot, learned advocate on record for the
applicant-original complainant and Ms. C.M. Shah, learned APP
appearing for the respondent-State.
R/CR.MA/7148/2022 ORDER DATED: 25/04/2023
3. Rule returnable forthwith. Learned APP waives service of notice
of rule for and on behalf of respondent-State.
4. This is an application preferred under Sub-Section (4) of Section
378 of Criminal Procedure Code, 1973 challenging the order of
acquittal dated 28.12.2021 passed by learned 2nd Additional Chief
Judicial Magistrate Court, Nadiad in Criminal Case No.4583 of 2017. By
the said judgment and order, the learned Magistrate has recorded the
order of acquittal of respondent No.1 for the offence punishable
under Section 138 of the N.I. Act.
5. Mr. Jay Barot, learned advocate on record for the applicant-
original complainant, has invited attention of this Court to the reasons
recorded by the learned Magistrate while recording the order of
acquittal of respondent-accused. He has submitted that in absence of
any dispute being raised with regard to the signature of the accused
on the disputed cheque, the statutory presumption available under
Section 118 read with Section 139 of the Act, had arisen in favour of
the complainant. He has further submitted that onus was on the
accused to prove that the cheque was not given against legal liability
as contended by the complainant in his complaint. He has further
submitted that the documents in the form of the license (Exh.37),
income tax return acknowledgment of annual assessment year-2017-
R/CR.MA/7148/2022 ORDER DATED: 25/04/2023
18 (Exh.41), have been brought on record by the complainant. He has
further submitted that the learned Magistrate without appreciating
the aforesaid documents, has unnecessary shifted the burden upon
the complainant to prove his case beyond reasonable doubt in
absence of any rebuttal of presumption, which already existed in
favour of the complainant. He therefore, urged this court to grant
leave to appeal.
6. Considering the aforesaid submissions made by learned
advocate on record for the applicant and the grounds raised in the
memo of appeal, in absence of any contest by the respondent No.1-
accused, prima facie, the Court finds that application seeking leave to
appeal requires consideration. Hence, leave to appeal is hereby
granted. Rule is made absolute.
ORDER IN R/CRIMINAL APPEAL NO. 753 of 2022
1. Admit.
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 private
respondent-accused.
4. Private respondent-accused be served through concerned police
R/CR.MA/7148/2022 ORDER DATED: 25/04/2023
station.
5. Registry is hereby directed to call for Record & Proceedings
forthwith.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
