Mansukhbhai Gobarbhai Patel vs State Of Gujarat
2023 Latest Caselaw 5970 Guj

                                                                                 NEUTRAL CITATION




   R/CR.MA/19438/2020                               ORDER DATED: 17/08/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 19438 of 2020
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                        MANSUKHBHAI GOBARBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR DIPESH D SONI(9996) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                               Date : 17/08/2023
                                ORAL ORDER

1. Heard Mr. Dipesh Soni, learned advocate on record for the applicant-original complainant. Mr. Dipesh Soni, learned advocate has invited attention of this Court to the order dated 28.06.2023 passed by this Court in Cr. Appeal No. 1035 of 2023. He further submitted that similar set of facts are involved in the present case. He, therefore, urged this Court to grant leave to appeal.

2. Notice issued by this Court has been duly served upon respondent-original accused. However, he has chosen not to object to the present application seeking leave to appeal. The Court has proceeded to hear this application seeking leave to appeal in absence of respondent-original accused.

3. This Court by order dated 28.06.2023 while admitting Cr. Appeal No. 1035 of 2023 has recorded the submission of learned advocate as under:

"1.0. Heard Mr. Dipesh Soni, learned advocate for the applicant-original complainant. Mr. Soni has relied upon the

NEUTRAL CITATION

R/CR.MA/19438/2020 ORDER DATED: 17/08/2023

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judgment of the Hon'ble Apex Court in the case of Tedi Singh vs. Narayan Dass Mahant reported in 2022 Live Law (SC) 275 and has submitted that at no stage the respondent-accused had raised the defence of financial capacity of the complainant. He has invited attention of this Court to the fact that accused had not even responded to the legal notice given by the complainant. Even in statement under Section 313 of the Code of Criminal Procedure except the defence of misuse of cheque, no defence with regard to the financial capacity of the complainant was raised. In such circumstances, it was for the accused to demonstrate that the complainant in a particular case did not have capacity by putting such question for the first time in cross examination, the same could not have been accepted by the learned Magistrate for treating it as an evidence rebutting presumption drawn in favour of the complainant.

2. Considering the submissions made by the learned advocate for the appellant and this Court vide order dated 14.2.2023 has granted the leave to appeal, present appeal is admitted. Learned Additional Public Prosecutor waives service of admission on behalf of respondent State. Issue bailable warrant in a sum of Rs.10,000/- against private respondent no.2. Registry is directed to call for the Record and Proceedings of the case from the concerned Court."

4. Considering the submissions of learned advocate for the applicant-original complainant, the present application seeking leave to appeal is hereby allowed.

5. Let appeal be notified on 24.08.2023 for admission hearing.

(NISHA M. THAKORE,J) SSVohra