Gujarat High Court
Adarsh Enterprise Thro ... vs State Of Gujarat on 2 August, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/11031/2023 ORDER DATED: 02/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11031 of 2023
In R/CRIMINAL APPEAL NO. 1471 of 2023
With
R/CRIMINAL APPEAL NO. 1471 of 2023
==========================================================
ADARSH ENTERPRISE THRO HITESHBHAI BHANUSHANKAR DAVE
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR ADIL R MIRZA(2488) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3,4
MR. HARDIK MEHTA, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 02/08/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION NO. 11031 of 2023
1. Rule returnable forthwith. Learned APP waives service of notice
of rule for and on behalf of respondent-State.
2. Heard Mr. Adil R. Mirza, learned advocate on record for the
applicant-original complainant.
3. This is an application preferred under Sub-Section (4) of Section
378 of Criminal Procedure Code, 1973 challenging the order of
acquittal dated 26.04.2023 passed by learned Additional Chief Judicial
NEUTRAL CITATION
R/CR.MA/11031/2023 ORDER DATED: 02/08/2023
undefined
Magistrate, Vapi in Criminal Case No.3146 of 2019. By the said
judgment and order, the learned Magistrate has recorded the order of
acquittal of respondents-accused for the offence punishable under
Section 138 of the N.I. Act.
4. Mr. Adil R. Mirza, learned advocate on record for the applicant-
original complainant, has submitted that learned Magistrate has
proceeded to record acquittal on erroneous ground by observing that
the complainant has failed to produce any cogent material to indicate
that the goods were delivered to the respondents-accused. He has
submitted that learned Magistrate has committed error in assuming
the fact that the transaction has not been proved by observing that
the E-way Bills have not been brought on record to show that the
goods were actually delivered. It is submitted that the learned
Magistrate ought to have appreciated that the Gujarat Sales Tax Act
has been introduced with effect from 01.07.2017, whereby the E-way
Bills were made applicable from 01.04.2018, pursuant to the
notification issued by the State Government. He has placed reliance
upon the challans, which have been brought on record in the form of
Exh.25 to Exh.64. By referring to the aforesaid documents, it is
submitted that in fact the sales vat was paid against such transaction
by the complainant. He therefore, urged this Court to grant leave to
NEUTRAL CITATION
R/CR.MA/11031/2023 ORDER DATED: 02/08/2023
undefined
appeal.
5. Considering the submissions made by learned advocate for the
applicant and having perused the impugned judgment and the
documents relied upon, prima facie, the Court finds that an arguable
case is raised by the complainant. Hence, the present application
seeking leave to appeal is hereby allowed. Rule is made absolute to
the aforesaid extent.
ORDER IN R/CRIMINAL APPEAL NO. 1471 of 2023
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/- each against
respondent-accused.
4. Registry is hereby directed to call for Record & Proceedings
from the concerned trial court forthwith.
5. Appeal is expedited.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
