Gujarat High Court
Trivedi Parth Sarthi Kanaiyalal vs State Of Gujarat on 23 August, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/10005/2023 ORDER DATED: 23/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10005 of 2023
In R/CRIMINAL APPEAL NO. 1303 of 2023
With
R/CRIMINAL APPEAL NO. 1303 of 2023
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TRIVEDI PARTH SARTHI KANAIYALAL
Versus
STATE OF GUJARAT
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Appearance:
MR PIYUSH B TRIVEDI(12401) for the Applicant(s) No. 1
Ms. Monali Bhatt, 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 : 23/08/2023
ORAL ORDER
1. Heard Mr. Piyush Trivedi, learned advocate for the
applicant- original complainant. By order dated 19.6.2023 Rule
was issued upon the respondent-accused. From the record, it
has transpired that Rule has been duly served upon the
respondent- accused. However, he has chosen not to contest the
present application seeking leave to appeal. In absence of
respondent-accused, this Court has proceeded hearing of the
present application seeking leave to appeal.
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 28.04.2023 passed by the
learned Additional Judicial Magistrate, Deesa in Criminal Case
No.1799 of 2018. By the said judgment and order, the
respondent no.2- original accused came to be acquitted for the
NEUTRAL CITATION
R/CR.MA/10005/2023 ORDER DATED: 23/08/2023
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offence 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
while recording the order of acquittal in proceedings arising out
of Section 138 of the Negotiable Instruments Act. At the outset,
it is submitted that the learned Magistrate mainly on the ground
that the complainant has failed to establish his financial
capacity to give hand loan of an amount of Rs.2,50,000/- has
proceeded to acquit the respondent-accused. As against the
aforesaid observation of the learned Magistrate, learned advocate
for the applicant has relied upon the judgment of the Hon'ble
Supreme Court in the case of Tedi Singh vs. Narayan Dass
Mahant reported in 2022 Live Law (SC) 275 and has submitted
that the learned Magistrate has committed serious error in
permitting the respondent-accused to raise such defence without
appreciating the fact that no such defence was raised by the
accused, at the first instance when legal notice was served upon
the respondent -accused. Attention of this Court is invited to the
fact that in fact legal notice was issued on 12.06.2018, which
was duly served upon the respondent- accused by Registered
Post AD on 13.6.2018. The acknowledgment slip has been
brought on record vide Exh.15. At this stage, learned advocate
has further invited attention of this Court to the perverse
findings recorded by the learned Magistrate without appreciating
the aforesaid facts, learned Magistrate has recorded that the
complainant has in his cross examination admitted that no
NEUTRAL CITATION
R/CR.MA/10005/2023 ORDER DATED: 23/08/2023
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acknowledgment of slip of such notice has been produced.
4. It is further submitted that the learned Magistrate has
given undue importance to the aspects of presentation of cheque
while examining with respect to discrepancy noted in the
averments made in the complaint, as against the cross
examination of the complainant. According to the learned
advocate such minor discrepancies have no significance so far as
core issue involved in the matter. He, therefore, urge this Court
to grant leave to appeal.
5. Considering the submissions of learned advocate for the
applicant and having perused the impugned judgment and
order, this Court prima facie is of the view that appeal deserves
admission. Hence, the present application is allowed and
Leave to Appeal, as prayed for, is hereby granted.
ORDER IN CRIMINAL APPEAL NO.1303 OF 2023
Admit. Learned Additional Public Prosecutor waives service
of admission on behalf of respondent State. Issue bailable
warrant in 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.
(NISHA M. THAKORE,J)
KAUSHIK J. RATHOD
