Baldevji Pratapji Rajput vs State Of Gujarat
2023 Latest Caselaw 5733 Guj

                                                                                NEUTRAL CITATION




     R/CR.MA/21447/2022                            ORDER DATED: 07/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 21447 of 2022

                    In R/CRIMINAL APPEAL NO. 2322 of 2022

                                    With
                      R/CRIMINAL APPEAL NO. 2322 of 2022
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                          BALDEVJI PRATAPJI RAJPUT
                                    Versus
                             STATE OF GUJARAT
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Appearance:
MR VIVEK V BHAMARE(6710) for the Applicant(s) No. 1
MR VN BHAMARE(1122) for the Applicant(s) No. 1
NOTICE SERVED 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 : 07/08/2023

                                ORAL ORDER

1. Heard Mr. Vivek Bhamare, learned advocate for the applicant - original complainant. Recording of the fact that notice has been duly served upon the respondent No.2 - original accused. However, the respondent has chosen not to contest the present application seeking leave to appeal. No appearance has been entered on behalf of the respondent - accused.

2. Rule. Learned APP waives service of Rule on behalf of the respondent No.1 - State.

3. Noticing the fact that the application for leave to appeal is pending consideration since long and though sufficient time has been granted to the respondent - accused, this Court has taken up this application for hearing in absence of the respondent No.2 -

NEUTRAL CITATION

R/CR.MA/21447/2022 ORDER DATED: 07/08/2023

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accused.

4. This application seeking leave to appeal is filed under Section 378(4) of the Code of Criminal Procedure, against the judgment and order dated 30.08.2022 passed by the learned Chief Judicial Magistrate, Patan, in Criminal Case No.684 of 2016. By the said judgment and order, the learned Magistrate has proceeded to record the acquittal of respondent No.2 - accused for the offence punishable under Section 138 of the Negotiable Instruments Act.

5. Learned advocate for the applicant at the outset, has invited attention of this Court to the reasons assigned by the learned Magistrate while recording the order of acquittal. The attention of this Court was invited to the conclusion drawn by the learned Magistrate, who has upon appreciation of the evidence led by the respondent - accused, more particularly, the witness examined by the accused vide Exhibit 34, has noted that the complainant has failed to prove the existence of legally enforceable debt as on date of the presention of cheque. The defence is raised by the accused that disputed cheque has been misused by the complainant by contending that the transaction, which had taken place with the respondent - accused in the year 2012 was only for an amount of Rs.30,000/- and at that stage, the cheque, which was handed over, was not returned back by the complainant and has been subsequently presented by the accused by falsely contending that the amount of Rs.7,50,000/- has been handed over by the complainant to the accused as hand loan. It is submitted that in fact, on appreciation of evidence of the aforesaid witness, it clearly transpires that his evidence is not reliable and is an interested

NEUTRAL CITATION

R/CR.MA/21447/2022 ORDER DATED: 07/08/2023

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witness. Apart from the aforesaid oral evidence, no cogent material has been brought on record to establish the fact that rebuttal of presumption has taken place. Reliance is placed on the decision of Brahmanand Mamlekar (Dead) by his L.Rs. And Ors. Vs. Kishor Suryakant Borkar and Anr. reported in AIR Online 2021 Bom. 4757. He, therefore, urged this Court to consider this application for leave to appeal.

6. Considering the submissions of the learned advocate for the applicant and having perused the impugned order, prima facie, this Court finds that an arguable case is made out. The application for leave to appeal requires consideration. Hence, present application for leave to appeal is hereby granted. Rule is made absolute.

CRIMINAL APPEAL No.2322 of 2022:

ADMIT. Learned APP waives service of Notice of admission on behalf of the respondent No.1 - State.

Issue bailable warrant of in the sum of Rs. 10,000/- against private respondent No.2 - original accused.

Let R & P be called for.

(NISHA M. THAKORE,J) Y.N. VYAS