Mrugesh Ashokbhai Patel vs Shaileshsing Lakhmansing Behola
2023 Latest Caselaw 5759 Guj

                                                                                   NEUTRAL CITATION




     R/CR.MA/662/2023                                ORDER DATED: 08/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 662 of 2023

                        In R/CRIMINAL APPEAL NO. 92 of 2023

                                      With
                         R/CRIMINAL APPEAL NO. 92 of 2023
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                        MRUGESH ASHOKBHAI PATEL
                                  Versus
                    SHAILESHSING LAKHMANSING BEHOLA
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Appearance:
MR VISHAL T. PATEL(6518) for the Applicant(s) No. 1
ZAINAB I BHARMAL(9298) for the Applicant(s) No. 1
MR HARDIK MEHTA ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 2
RULE SERVED for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                 Date : 08/08/2023

                                   ORAL ORDER

1. Heard Mr. Vishal Patel, learned advocate for the applicant - original complainant.

2. This Court by order dated 12.01.2023 had issued Rule upon the respondent - accused. From the record, it has transpired that Rule has been duly served upon the respondent No.2. However, no appearance has been filed till date.

3. This application seeking leave to appeal is taken up for hearing in absence of respondent - original accused. This Court while issuing Rule, had passed the following order.

"1. Heard Ms. Zainab I. Bharmal, learned advocate on record for the applicant-original complainant.

NEUTRAL CITATION

R/CR.MA/662/2023 ORDER DATED: 08/08/2023

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2. This is an application filed by the applicant-original complainant seeking leave to appeal under Section 378(4) of the Cr.P.C., 1973 challenging the judgment and order of acquittal dated 21.12.2022 passed by learned Special Metropolitan Magistrate, Ahmedabad in Criminal Case No.34578 of 2019. By the said impugned judgment and order of acquittal, respondent No.1- original accused came to be acquitted for the offence punishable under Section 138 of the N.I. Act.

3. Ms. Zainab I. Bharmal, learned advocate on record for the applicant-original complainant, has invited attention of this Court to the reasons assigned by the trial court while recording the order of acquittal and has submitted that despite cogent material being brought on record in the form of bank statement, the trial court has committed error in recording the order of acquittal. She has submitted that on bare perusal of the statement of account of the complainant, it transpires that the complainant has been able to establish his financial ability to advance the loan to the respondent-accused. She has further invited attention of this Court to the evidence of the branch manager of the concerned bank, who has been examined vide Exh.21 and submitted that the statement of account have been proved through the evidence of the branch manager and it has clearly come on record that from 02.03.2016 up to 25.07.2016, the complainant had withdrawn amount, which could have been believed to be lent to the accused.

4. Let RULE be issued, making it returnable on 16.02.2023. Learned APP waives service of notice of rule for and on behalf of respondent-State."

4. During the course of arguments, learned advocate appearing for the applicant has submitted that the learned Magistrate has committed gross error in shifting the burden upon the original complainant in absence of any rebuttal of presumption, which has otherwise arisen in favour of the complainant. Once again attention

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R/CR.MA/662/2023 ORDER DATED: 08/08/2023

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of this Court, was invited attention to the reasons assigned by the learned Magistrate, while passing impugned order of acquittal of the present respondent - accused. It is submitted that the learned Magistrate ignoring the provisions of Section 139 of Negotiable Instruments Act has proceeded on the ground that the legal debt attached with the disputed cheque, was required to be proved by the complainant. It is further submitted that the learned Magistrate has taken shield of involvement of the complainant in the criminal offence and has called upon the complainant to prove the source of funds against which the amount in dispute, was alleged to have been handed over to the respondent - accused, which according to the learned advocate, is not correct approach of the learned Magistrate in the proceedings arising out of the Negotiable Instruments Act.

5. Having heard the learned advocate for the applicant and having perused the impugned order passed by the learned Magistrate and the documents placed on record in the form of the paper book, prima facie, the Court finds that at one stage, the defence was raised by the respondent accused with regard to the misuse of the cheque by the complainant. Even in cross- examination of the complainant, it is fairly accepted by the complainant that the blank cheque was handed over by the accused along with affidavit. In the opinion of this Court, close scrutiny of evidence is required. Hence, application for leave to appeal is hereby granted. Rule is made absolute.

NEUTRAL CITATION

R/CR.MA/662/2023 ORDER DATED: 08/08/2023

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CRIMINAL APPEAL NO.92 of 2023:

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

Issue bailable warrant of in the sum of Rs. 10,000/- against private respondent No.1

Let Appeal be expedited.

R & P called for.

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