Gujarat High Court
Shubhi Nitin Lokhande vs State Of Gujarat on 1 August, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/1326/2020 ORDER DATED: 01/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1326 of 2020
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SHUBHI NITIN LOKHANDE
Versus
STATE OF GUJARAT
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Appearance:
MR. SURAJ A SHUKLA(7185) for the Applicant(s) No. 1
MR. RAJENDRA D JADHAV(10026) for the Respondent(s) No. 2
Mr. Hardik Mehta, Addl.PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 01/08/2023
ORAL ORDER
1.0. Heard Mr. Rashesh Patel, learned advocate who has
appeared on behalf of Mr. Suraj Shukla, learned advocate for the
applicant.
2.0. This Court by order dated 24.3.2022 had issued notice
upon the respondent - original accused. Learned advocate
Mr.Rajendra Jadhav at one stage had appeared on behalf of said
respondent. Today, when the matter is taken up for hearing, Mr.
Jadhav has failed to appear and assist this Court. The Court has
proceeded to hear the present application seeking leave to appeal
in absence of learned advocate for the respondent - accused.
3.0. This application is filed under Section 378(4) of the Code of
Criminal Procedure seeking leave to appeal against the
impugned order of acquittal dated 10.12.2019 passed by the
learned 8th Additional Senior Civil Judge and JMFC, Surat in
Criminal Case No.8675 of 2018. By the said judgment and order,
NEUTRAL CITATION
R/CR.MA/1326/2020 ORDER DATED: 01/08/2023
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the learned Magistrate has proceeded to record the order of
acquittal of present respondent no.2 for the alleged offence
punishable under Section 138 of the Negotiable Instruments Act.
4.0. Learned advocate for the applicant has invited attention of
this Court to the reasons assigned by the learned Magistrate
while passing the impugned order of acquittal. He has submitted
that cogent material in the form of agreement entered into,
before the Notary on 2.7.2015 has been placed on record vide
Exh.8 wherein the present respondent -accused has
acknowledge about the fact of receipt of amount of
Rs.22,00,000/-. He has further submitted that in fact cheque of
concerned bank was handed over to the original complainant in
the form of security. It is contended by the complainant that in
absence of payment of aforesaid amount as agreed between the
parties, the disputed cheque was handed over by the accused
towards payment of amount of Rs.22,00,000/-, which has
subsequently got dishonored. The cogent material in the form of
balancesheet and Income Tax return filed by the original
complainant for the AY 2016-17 has also been brought on record
vide Exhs.24 and 25. However, the learned Magistrate has not
taken into consideration the aforesaid documents on irrelevant
assumption of facts. On the other hand, the accused has raised
defence of misuse of cheque, whereas, in reply to the notice the
defence is raised that cheque was stolen and was misused. Thus,
contrary defence has been raised by the respondent-accused
before the trial Court. The learned Magistrate has failed to
appreciate the evidence being brought on record by the
complainant in absence of any dispute being raised with regard
to the signature on the cheque in question, in absence of any
NEUTRAL CITATION
R/CR.MA/1326/2020 ORDER DATED: 01/08/2023
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probable defence being brought on record by the complainant by
leading any cogent material in support of the defence raised, the
learned Magistrate has proceeded to examine the aspect of
financial ability of the complainant to extend the hand loan of an
amount of Rs.22,00,000/- in cash. Having noticed the aforesaid
circumstances, the Court is of the view that matter requires
close examination. Hence, the present application is allowed
and Leave to Appeal, as prayed for, is hereby granted.
5.0. Registry is directed to notify the appeal for admission
hearing on 22.08.2023.
(NISHA M. THAKORE,J)
KAUSHIK J. RATHOD
