Gujarat High Court
Virendra Bharatbhai Bhagat vs State Of Gujarat on 25 August, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/5056/2023 ORDER DATED: 25/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5056 of 2023
In R/CRIMINAL APPEAL NO. 646 of 2023
With
R/CRIMINAL APPEAL NO. 646 of 2023
With
CRIMINAL MISC.APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of
2023
In R/CRIMINAL APPEAL NO. 646 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 5065 of 2023
In
CRIMINAL APPEAL NO. 656 of 2023
With
R/CRIMINAL APPEAL NO. 656 of 2023
With
CRIMINAL MISC.APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of
2023
In R/CRIMINAL APPEAL NO. 656 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 5066 of 2023
In
CRIMINAL APPEAL NO. 655 of 2023
With
R/CRIMINAL APPEAL NO. 655 of 2023
With
CRIMINAL MISC.APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of
2023
In R/CRIMINAL APPEAL NO. 655 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 5096 of 2023
In
CRIMINAL APPEAL NO. 668 of 2023
With
R/CRIMINAL APPEAL NO. 668 of 2023
With
CRIMINAL MISC.APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of
2023
In R/CRIMINAL APPEAL NO. 668 of 2023
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VIRENDRA BHARATBHAI BHAGAT
Versus
STATE OF GUJARAT
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NEUTRAL CITATION
R/CR.MA/5056/2023 ORDER DATED: 25/08/2023
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Appearance:
MR KUNAL S SHAH(5282) for the Applicant(s) No. 1
DHRUV TOLIYA(9249) for the Respondent(s) No. 2
MS. M.H. BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 25/08/2023
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATIONS (FOR ADDITIONAL
EVIDENCE)
1. Heard Mr. Kunal Shah, learned advocate on record for the
applicant-original complainant and Mr. Dhruv Toliya, learned advocate
on record for respondent-original accused.
2. Learned advocates appearing for the respective parties have
jointly submitted that let the application for additional evidence be
heard along with the appeal at the stage of final hearing.
3. Noticing the submissions made by learned advocates appearing
for the respective parties and having perused the impugned order as
well as the documents, which the original complainant intends to
bring on record, more particularly, the income tax returns of five
years, which are sought to be placed on record and the order of
conviction passed in the cognate matters arising out between the
same parties, this Court is inclined to accept the request of learned
NEUTRAL CITATION
R/CR.MA/5056/2023 ORDER DATED: 25/08/2023
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advocates appearing for the respective parties.
4. Let these applications seeking production of additional
evidence be heard along with the appeal at the final hearing stage.
ORDER IN CRIMINAL MISC. APPLICATIONS (FOR LEAVE TO
APPEAL)
1. Heard learned advocates appearing for the respective parties.
2. Rule returnable forthwith. Learned APP waives service of notice
of rule for and on behalf of respondent-State and learned advocate
Mr. Dhruv Toliya waives service of notice of rule for and on behalf of
respondent-accused.
3. These applications are filed under Section 378(4) of Cr.P.C.
seeking leave to appeal challenging the orders dated 08.12.2022
passed by learned 22nd Additional Chief Judicial Magistrate, Surat in
Criminal Case Nos.50392 of 2018, 45675 of 2018, 45671 of 2018 and
38656 of 2016. By the said judgment and order, the learned
Magistrate has recorded acquittal of present respondent No.2-
accused for the offence alleged under Section 138 of the N.I. Act.
4. In nutshell, the case of the complainant is that the respondent-
accused is engaged in the business of brokerage of sale and purchase
NEUTRAL CITATION
R/CR.MA/5056/2023 ORDER DATED: 25/08/2023
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of lands. The respondent had offered complainant good return on the
investment in property. Having trust in the words of the respondent-
accused, the applicant had parted with an amount of Rs.56,30,000/-. It
is contended in the complaint that after such payment being made,
the accused asked the applicant to part with further sum of an amount
of Rs.70 Lakhs towards investment in the property. Later on, the
applicant had raised the demand against which the respondent had
issued four different cheques of different amounts. Such cheques
were dishonoured with endorsement of "funds insufficient" as
reported from the concerned bank. This had led to filing of total six
complaints under Section 138 of N.I. Act before the court of learned
Additional Chief Judicial Magistrate, Surat.
5. The learned advocate for the applicant has submitted that out
of the aforesaid six cases, in four cases, the learned magistrate has
proceeded to record acquittal of respondent-accused mainly on the
ground that the complainant has failed to prove his case beyond
reasonable doubt. The attention of this Court is invited to the fact
that financial capacity of the applicant was the principle aspect, which
was taken into consideration by the learned magistrate. It is further
submitted that in rest of the two matters, the order of conviction has
been passed. The attention of this Court is also invited to the
NEUTRAL CITATION
R/CR.MA/5056/2023 ORDER DATED: 25/08/2023
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fact that in fact, cogent material was brought on record, which
includes the present documents, which the applicant intends to rely
upon in the present proceedings. The aforesaid documents were
admitted as an evidence and based on such cogent material, the
learned trial court had proceeded to record acquittal in rest of the two
cases. It is further submitted that the appeal, against the aforesaid
order of conviction, is pending consideration, before the learned
Sessions Judge. Learned advocate for the applicant-original
complainant has therefore, urged this Court to grant leave to appeal.
6. Learned advocate appearing for ther respondent-accused has
vehemently objected to grant of leave to appeal. However, he has
agreed to the fact that the application for production of additional
documents be heard, if the court is inclined to admit the appeal.
7. Having heard the learned advocates appearing for the
respective parties and considering the fact that the documents, if
permitted to be taken upon record, would be required to be examined
closely. In the opinion of this Court, the appeal cannot be dismissed at
the threshold. The documents intend to be brought on record by way
of production of additional documents needs to be examined closely
in light of the findings of the learned magistrate. Hence, these
applications seeking leave to appeal are hereby granted. Rule is made
NEUTRAL CITATION
R/CR.MA/5056/2023 ORDER DATED: 25/08/2023
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absolute.
ORDER IN CRIMINAL APPEALS
1. Admit.
2. Learned APP waives service of notice of admission for and on
behalf of respondent-State and learned advocate Mr. Dhruv Toliya
waives service of notice of admission for and on behalf of respondent-
accused.
3. Appeals are expedited.
4. Registry is hereby directed to call for Record & Proceedings
before the next date of hearing.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
