Gujarat High Court
M/S Adhoc Rushank Petrolium Thro ... vs State Of Gujarat on 8 August, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/4323/2023 ORDER DATED: 08/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4323 of 2023
In R/CRIMINAL APPEAL NO. 490 of 2023
With
R/CRIMINAL APPEAL NO. 490 of 2023
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M/S ADHOC RUSHANK PETROLIUM THRO ANILBHAI CHHAGANLAL
PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR.MRUDUL M BAROT(3750) for the Applicant(s) No. 1
MR HARDIK MEHTA ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 08/08/2023
ORAL ORDER
1. Heard Mr. Barot, learned advocate for the applicant - original
complainant.
2. This Court by order dated 31.03.2023 had issued Rule upon
the respondent - accused. From the record, it has transpired that
Rule has been duly served upon the respondent - accused.
However, till date no appearance has been filed. In absence of any
appearance, this application seeking leave to appeal is taken up
for hearing in absence of respondent No.2.
3. This application is filed under Section 378(4) of Code of
Criminal Procedure, seeking leave to appeal against the impugned
judgment and order dated 30.01.2023 passed by the learned 2 nd
NEUTRAL CITATION
R/CR.MA/4323/2023 ORDER DATED: 08/08/2023
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Additional Chief Judicial Magistrate, Valsad, in Criminal Case
No.2158 of 2016. By said judgment and order, learned Magistrate
has proceeded to record acquittal of the respondent No.2 - original
accused for the offence punishable under Section 138 of the
Negotiable Instruments Act.
4. Learned advocate for the applicant, at the outset, has invited
attention of this Court to the reasons assigned by the learned
Magistrate in recording the impugned judgment and order of
acquittal. It is submitted that solely on the ground that the return
memo placed on record issued by the concerned bank, does not
bear the seal of the bank, noticing the aforesaid lacuna, the
learned Magistrate has proceeded to record that the complainant
has failed to prove the aspect of dishonor of the cheque. Learned
advocate has placed reliance upon the decision of the Delhi High
Court in the case of Guneet Bhasin Vs. State of NCT of Delhi &
Anr. passed in CRL. M.C. No.4100 of 2022 and CRL. MA
No.16919 of 2022 dated 14.11.2022. He has therefore, urged this
Court to grant leave to appeal.
5. Considering the submissions of the learned advocate for the
applicant and in absence of any objection being raised by the
respondent - accused, prima facie, this Court find that the matter
requires consideration. With regard to the infirmity noticed by the
learned Magistrate in the return memo of the cheque, the Court is
of the view that the opportunity could have been extended to the
complainant to establish the aforesaid document by examining the
NEUTRAL CITATION
R/CR.MA/4323/2023 ORDER DATED: 08/08/2023
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witness. Hence, present application seeking leave to appeal is
hereby granted. Rule is made absolute.
CRIMINAL APPEAL No.490 OF 2023:
ADMIT. Learned APP waives service of Rule on behalf of the
respondent .
Issue bailable warrant of in the sum of Rs.10,000/-
against private respondent.
Let Appeal be expedited.
R & P called for.
Registry is directed to notify the appeal for final hearing on
11.09.2023.
(NISHA M. THAKORE,J)
Y.N. VYAS
