Gujarat High Court
Desai Savjibhai Jivrajbhai vs State Of Gujarat on 23 August, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/13775/2023 ORDER DATED: 23/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13775 of 2023
In R/CRIMINAL APPEAL NO. 1856 of 2023
With
R/CRIMINAL APPEAL NO. 1856 of 2023
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DESAI SAVJIBHAI JIVRAJBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR. MAULIK M SONI(7249) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS. VRUNDA C. SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 23/08/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION NO. 13775 of 2023
1. Heard Mr. Maulik Soni, learned advocate on record for the
applicant-original complainant.
2. Rule returnable forthwith. Learned APP waives service of notice
of rule for and on behalf of respondent-State.
3. This is an application preferred under Sub-Section (4) of Section
378 of Criminal Procedure Code, 1973 challenging the order of
acquittal dated 26.05.2023 passed by learned Chief Judicial
Magistrate, Patan in Criminal Case No.1176 of 2016. By the said order,
NEUTRAL CITATION
R/CR.MA/13775/2023 ORDER DATED: 23/08/2023
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the learned Magistrate has recorded the order of acquittal of
respondent-accused for the offence punishable under Section 138 of
the N.I. Act.
4. Learned advocate appearing for the applicant has placed on
record the copies of the relevant documents, which are permitted to
be taken upon record. The attention of this Court is invited to the
reasons assigned by the learned Magistrate. It is contended that the
applicant is a small farmer and from the source of his income derived
from the agricultural activity, the amount of Rs.3,60,000/- was given at
different occasions to the respondent-accused as friendly loan.
However, the learned Magistrate noticing the discrepancy in the
amount given by hand loan as contended in the complaint, as against
the cross-examination of the complainant, has proceeded to the
record the acquittal of present respondent-accused. It is further
submitted that the learned Magistrate has gone on the aspect of
financial ability of the complainant to give hand loan of such amount
of Rs.3,60,000/- to the respondent-accused. The attention of this
Court is also invited to the fact that in fact, no reply was given to the
legal notice, which was duly served upon the respondent-accused on
28.03.2016. It is therefore, submitted that the applicant would have
the benefit of the judgment of the Hon'ble Apex Court in the case of
Tedhi Singh vs Narayan Dass Mahant reported in 2022 (6) SCC 735.
NEUTRAL CITATION
R/CR.MA/13775/2023 ORDER DATED: 23/08/2023
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By making the aforesaid submissions, the learned advocate for the
applicant has therefore, urged this Court to grant leave to appeal.
5. Considering the submissions made by learned advocate for the
applicant and having perused the documents placed on record as well
as the impugned order passed by the learned Magistrate, prima faice,
the Court finds that the appeal deserves admission. Hence, the
present application seeking leave to appeal is hereby granted. Rule is
made absolute.
ORDER IN R/CRIMINAL APPEAL NO. 1856 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
