Bhimabhai Punjabhai Singhal vs State Of Gujarat
2023 Latest Caselaw 6260 Guj

                                                                                   NEUTRAL CITATION




      R/CR.MA/9353/2023                             ORDER DATED: 25/08/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/CRIMINAL MISC.APPLICATION NO. 9353 of 2023
                   In R/CRIMINAL APPEAL NO. 1211 of 2023
                                   With
                    R/CRIMINAL APPEAL NO. 1211 of 2023
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                          BHIMABHAI PUNJABHAI SINGHAL
                                     Versus
                               STATE OF GUJARAT
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Appearance:
ADVOCATE NOTICE SERVED for the Applicant(s) No. 1
DENISH V MAVADHIYA(9207) for the Applicant(s) No. 1
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 R/CRIMINAL MISC.APPLICATION NO. 9353 of 2023

1. Heard learned advocate Mr. Devansh Kakkad appearing on

behalf of Mr. Denish V. Mavadhiya, learned advocate on record for the

applicant-original complainant. At the outset, the learned advocate

appearing for the applicant has placed on record the relevant

documents, which are permitted to be taken upon record.

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 10.04.2023 passed by learned Additional Chief Judicial

NEUTRAL CITATION

R/CR.MA/9353/2023 ORDER DATED: 25/08/2023

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Magistrate, Keshod in Criminal Case No.1624 of 2021. By the said

judgment and order, the learned Magistrate has recorded the order of

the acquittal of respondent-accused for the offence punishable under

Section138 of the N.I. Act.

4. The attention of this Court is invited to the perverse findings

recorded by the learned Magistrate while recording the impugned

order of acquittal in the proceedings arising out of Section 138 of the

N.I. Act. It is submitted that the learned Magistrate has ignored the

vital documents, which are the legal notice issued upon respondent-

accused on 22.06.2021 (Exh.33), the registered post A.D.

acknowledgment slip (Exh.34) and the track consignment report

issued by the Postal Department (Exh.35), which goes to indicate that

in fact, the legal notice was addressed to the respondent-accused on

22.06.2021, which was sent by registered post A.D. on 24.06.2021 and

was in fact delivered on 24.06.2021 upon the respondent-accused. It is

therefore, submitted that the learned Magistrate while noticing the

affidavit in the form of examination-in-chief, wherein inadvertently by

typographical error, it was mentioned as 24.07.2021 as the relevant

date for the receipt of the legal notice, proceeded to record that such

notice was received after filing of the complaint i.e. on 16.07.2021.

With such observation, the learned trial court erroneously arrived at a

conclusion that the cause of action had not arisen for the complainant

NEUTRAL CITATION

R/CR.MA/9353/2023 ORDER DATED: 25/08/2023

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to lodge the complaint and has dismissed the complaint, resulting into

the acquittal of respondent-accused. He therefore, urged this Court to

grant leave to appeal.

5. Considering the submissions made by learned advocate for the

applicant and having perused the impugned order as well as the

relevant documents, which have been placed on record, the Court has

no hesitation in holding that the perverse findings have been recorded

by the learned Magistrate. The learned advocate for the applicant has

made out the case for admission of this appeal. Hence, the present

application seeking leave to appeal is hereby granted. Rule is made

absolute.

ORDER IN R/CRIMINAL APPEAL NO. 1211 of 2023

Issue Notice for final disposal, making it returnable on

21.09.2023. Learned APP waives service of notice for and on behalf of

respondent-State.

Issue bailable warrant of Rs. 10,000/- against respondent-

accused.

Registry is hereby directed to call for Record & Proceedings

before the next date of hearing.

(NISHA M. THAKORE,J) SUYASH SRIVASTAVA