Gujarat High Court
Abdul Sattarbhai Yusufmiya Malek ... vs State Of Gujarat on 17 August, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/23004/2021 ORDER DATED: 17/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23004 of 2021
In R/CRIMINAL APPEAL NO. 2030 of 2021
With
R/CRIMINAL APPEAL NO. 2030 of 2021
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ABDUL SATTARBHAI YUSUFMIYA MALEK THRO NYAMATULLAH
ABDUL SATTARBHAI YUSUFMIYA MALEK
Versus
STATE OF GUJARAT
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Appearance:
MR HARSHAD K PATEL(2844) for the Applicant(s) No. 1
JAIMIN A GANDHI(8065) for the Respondent(s) No. 2
Ms. C M Shah, Addl. 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. H K Patel, learned advocate for the applicant
and Mr. Jaymin Gandhi, learned advocate for the respondent -
accused.
2. Rule making it returnable forthwith. Learned Additional
Public Prosecutor waives service of Rule on behalf of
respondent State and Mr. Gandhi, learned advocate waives
service of Rule on behalf of respondent -accused.
3. This application is filed under Section 378(4) of the Code
of Criminal Procedure seeking leave to appeal against the
impugned judgment and order dated 23.1.2020 passed by the
learned 2nd Additional Chief Judicial Magistrate, Bharuch in
NEUTRAL CITATION
R/CR.MA/23004/2021 ORDER DATED: 17/08/2023
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Criminal Case No.966 of 2016. By the said judgment and
order, the learned Magistrate has proceeded to record the
acquittal of respondent no.2-accused for the offences
punishable under Section 138 of the Negotiable Instruments
Act.
4. Mr. Patel, learned advocate for the applicant has invited
attention of this Court to the reasons assigned by the learned
Magistrate and has submitted that learned Magistrate has
erred in not properly appreciating the oral evidence of the
complainant in its true perspective. The attention of this Court
is invited to the document which is in the nature of mortgage
deed produced vide Exh.17. He has further submitted that
once the respondent has not raised dispute with regard to the
signature on the disputed cheque, the presumption available
under the law had arose in favour of the complainant, that the
cheque was issued towards legally enforceable debt. In fact,
the document produced vide Exh.17 is secondary piece of
evidence which goes to support the case of the complainant.
In such circumstances, learned Magistrate ought not to have
insisted the strict applicability of the provisions of Evidence
Act. He, therefore, urge this Court to grant leave to appeal.
5. Mr. Jaymin Gandhi, learned advocate for the respondent
no.2- accused has vehemently objected to grant of leave to
appeal. He has submitted that no error can be found with the
approach of the learned Magistrate in discarding the
aforesaid document, more particularly, when it was not even
registered or sufficiently stamped, it was for the complainant
to prove his case beyond reasonable doubt.
NEUTRAL CITATION
R/CR.MA/23004/2021 ORDER DATED: 17/08/2023
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6. Considering the submissions of the learned advocates
for the respective parties and having perused the impugned
judgment and order as well as ground raised in the appeal, in
the opinion of this Court, leave to appeal deserves
consideration. Hence, the present application is allowed and
Leave to Appeal, as prayed for, is hereby granted.
Order in Criminal Appeal No.2030 of 2021
Admit. Learned Additional Public Prosecutor waives
service of admission on behalf of respondent State and
Mr.Gandhi, learned advocate waives service of admission on
behalf of the respondent no.2. Registry is directed to call for
the Record and Proceedings of the case from the concerned
Court.
(NISHA M. THAKORE,J)
KAUSHIK J. RATHOD
