Ramesh Narshibhai Rawal ... vs State Of Gujarat
2023 Latest Caselaw 6128 Guj

                                                                                 NEUTRAL CITATION




     R/CR.MA/3917/2023                              ORDER DATED: 21/08/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
            R/CRIMINAL MISC.APPLICATION NO. 3917 of 2023
                In R/CRIMINAL APPEAL NO. 439 of 2023
                               With
                 R/CRIMINAL APPEAL NO. 439 of 2023
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    RAMESH NARSHIBHAI RAWAL PROPRIETOR OF DEV PIPE AGENCY
                                Versus
                         STATE OF GUJARAT
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Appearance:
PRIYAL YATIN SHAH(8996) for the Applicant(s) No. 1
MS TANAVEER K LOLADIA(9994) for the Respondent(s) No. 2
Ms. Vrund C Shah, Addl.PUBLIC PROSECUTOR for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
                  Date : 21/08/2023
                    ORAL ORDER

1. Heard Ms. Priyal Shah, learned advocate for the applicant and Ms. Tanveer Loladia, learned advocate for the respondent no.2- accused. Issue Rule making it returnable forthwith. Ms. Loladia, learned advocate for waives service of Rule on behalf of respondent no.2 and learned Additional Public Prosecutor waives service of Rule on behalf of respondent no.1 State.

2. This application is filed under Section 378(4) of the Code of Criminal Procedure seeking leave against the impugned judgment and order of acquittal dated 22.08.2022 passed by the learned Chief Judicial Magistrate, Surendranagar in Criminal Case No.912 of 2015. By the said judgment and order, the learned Magistrate has proceeded to record the order of acquittal of the present respondent no.2 for the alleged offences punishable under Section 138 of the Negotiable Instruments Act.

3. Learned advocate for the applicant has invited attention of this Court to the reasons assigned by the learned Magistrate and has submitted that the learned Magistrate committed error in

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not appreciating the fact that no cogent material has been brought on record by the respondent accused to rebut the presumption, which has been drawn in favour of the complainant. She has relied upon the judgment of the Hon'ble Supreme Court in the case of Uttam Ram vs. Devinder Singh Hudan & Anr rendered in Criminal Appeal No.1545 of 2019 dated 17.10.2019. It is submitted that in absence of any evidence to rebut the statutory presumption, the cheques in question being drawn in favour of the complainant for consideration and being the holder in due course, had remained intact. The onus was upon the accused to establish the probable defence so as to rebut such presumption. The learned Magistrate has proceeded to record acquittal taking into consideration the cross examination of the complainant noticing the discrepancy in the outstanding amount. It is further contended that such amount were realized as fairly admitted but towards different transactions. She, urge this Court to grant leave to appeal.

4. Learned advocate for the respondent no.2 has submitted that the respondent -accused has been successful in raising probable defence at the stage of cross examination of the complainant. She has submitted that on bare comparison of the bills, which have been produced on record by the complainant vide Exhs. 79 to 85, as compared to statement of account produced by the complainant vide Exh.26 goes to indicate discrepancy in the amount. She has further submitted that in the cross examination the complainant had fairly admitted that an amount of Rs.3,50,000/- was received towards such transaction, which was otherwise not reflected in the statement of account (Exh.26). She, therefore, submitted that on overall appreciation of the evidence which has come on record, the

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learned Magistrate has rightly recorded acquittal as the complainant had failed to prove his case beyond reasonable doubt.

5. Considering the submissions of the learned advocates for the respective parties and having perused the impugned judgment and order, prima facie, the Court finds that the impugned order is required to be appreciated in light of the evidence which has come on record, more particularly, the bills produced on record by the complainant, as against the statement of account. Additionally, in absence of any probable defence being brought on record by the respondent-accused whether the discrepancy in the amount based on comparison of the aforesaid document would have bearing with regard to the consideration, which has otherwise been presumed in eye of law in terms of Section 118-a of the Negotiable Instruments Act. In the opinion of this Court, an arguable case is made out and appeal requires consideration. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted.

ORDER IN CRIMINAL APPEAL NO.439 OF 2023

Admit. Learned Additional Public Prosecutor waives service of admission on behalf of respondent State and Ms. Loladia, 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