Gujarat High Court
Bhaveshkumar Kishorchandra ... vs Arjunbhai Mangubhai Naika on 8 August, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/9307/2023 ORDER DATED: 08/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9307 of 2023
In R/CRIMINAL APPEAL NO. 1193 of 2023
With
R/CRIMINAL APPEAL NO. 1193 of 2023
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BHAVESHKUMAR KISHORCHANDRA KAYASTH
Versus
ARJUNBHAI MANGUBHAI NAIKA
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Appearance:
MR HIREN P VYAS(2269) for the Applicant(s) No. 1
MS SEJAL H VYAS(3211) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR. HARDIK MEHTA, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 08/08/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION NO. 9307 of 2023
1. Heard Mr. Hiren Vyas, learned advocate on record for the
applicant-original complainant and learned APP appearing for the
respondent-State.
2. Rule returnable forthwith. Learned APP waives service of notice
of rule for and on behalf of respondent-State.
3. This application is filed under Sub-Section (4) of Section 378 of
Criminal Procedure Code, 1973, seeking leave to appeal against the
NEUTRAL CITATION
R/CR.MA/9307/2023 ORDER DATED: 08/08/2023
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judgment and order dated 06.02.2023 passed by learned Additional
Chief Judicial Magistrate, Gandevi in Criminal Case No.4878 of 2019.
By the said judgment and order, the learned Magistrate has
proceeded to record the order of acquittal of present respondent
No.1-original accused for the offence punishable under Section 138 of
the N.I. Act.
4. Mr. Hiren Vyas, learned advocate on record for the applicant-
original complainant, has placed on record the copy of examination-in-
chief of the original complainant. The attention of this Court is invited
to the fact that the respondent-accused has raised contradictory
defence with regard to the issuance of disputed cheque. It is further
submitted that the learned Magistrate has committed serious error
while examining the aspect of financial capacity of the present
complainant. In support of his case, he has placed reliance upon the
case of Tedhi Singh vs Narayan Dass Mahant reported in 2022 (6)
SCC 735. He therefore, urged this court to grant leave to appeal.
5. Having heard the learned advocate for the applicant and having
perused the impugned order as well as the documents placed on
record, prima facie, the Court notices that the appeal deserves
admission. It is contended before this Court by the original
complainant that though legal notice raising demand of the disputed
NEUTRAL CITATION
R/CR.MA/9307/2023 ORDER DATED: 08/08/2023
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amount of cheque, being duly served upon the respondent-accused,
no reply was given by the respondent-accused to the aforesaid
demand notice. In such circumstances, the learned Magistrate ought
not to have permitted the respondent-accused to raise this issue of
financial capacity of the complainant for the first time at the stage of
cross-examination of the complainant. Hence, the present application
seeking leave to appeal is granted. Rule is made absolute.
ORDER IN R/CRIMINAL APPEAL NO. 1193 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/- against respondent-
accused.
4. Registry is hereby directed to call for Record & Proceedings
from the concerned trial court forthwith.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
