Gujarat High Court
Bharatbhai Vinubhai Chauhan vs State Of Gujarat on 28 August, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/11874/2021 ORDER DATED: 28/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11874 of 2021
In R/CRIMINAL APPEAL NO. 926 of 2021
With
R/CRIMINAL APPEAL NO. 926 of 2021
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BHARATBHAI VINUBHAI CHAUHAN
Versus
STATE OF GUJARAT
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Appearance:
DR. HIREN S SOMAIYA(8031) for the Applicant(s) No. 1
DS AFF.NOT FILED (R) 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 : 28/08/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION NO. 11874 of 2021
1. Heard Mr. Hiren S. Somaiya, learned advocate on record for the
applicant-original complainant.
2. Though respondent No.2-original accused is served, but he has
chosen not to appear before this Court or to contest the present
application.
3. This application is preferred under Sub-Section (4) of Section
378 of Criminal Procedure Code, 1973 challenging the order of
acquittal dated 08.03.2021 passed by learned 5 th Additional Senior
NEUTRAL CITATION
R/CR.MA/11874/2021 ORDER DATED: 28/08/2023
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Civil Judge, Anand in Criminal Case No.932 of 2019. By the said
judgment and order, the learned Magistrate has recorded the order of
acquittal of respondent-accused for the offence alleged under Section
138 of the N.I. Act.
4. At the outset, learned advocate appearing for the applicant has
invited attention of this court to the reasons assigned by the learned
Magistrate while proceeding with recording of order of acquittal. It is
submitted that the learned Magistrate has erroneously shifted the
burden upon the complainant while appreciating the cross-
examination of the complainant. It is further submitted that no
response was there from the respondent-original accused to the legal
notice, though duly served. In such circumstances, the learned
Magistrate ought not to have taken into consideration the aspect of
financial ability of the complainant to part with an amount of Rs.1
lakh. In support of his case, he has placed reliance upon the case of
Tedhi Singh vs Narayan Dass Mahant reported in 2022 (6) SCC 735. It
is further submitted that since the question was lead with regard to
the existence of transaction as alleged in the complaint at the stage of
cross-examination, while responding to such question, the
complainant had offered the explanation that the amount was
transferred by R.T.G.S. In such circumstances, the learned Magistrate
ought to have appreciated the fact that aforesaid fact being not
NEUTRAL CITATION
R/CR.MA/11874/2021 ORDER DATED: 28/08/2023
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controverted further in the cross-examination, the existence of
transaction has been proved by the complainant. By making the
aforesaid submissions, learned advocate for the applicant has 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, prima facie, the
Court finds that an arguable case is made out to admit the appeal.
Hence, present application seeking leave to appeal is hereby granted.
Rule is made absolute.
R/CRIMINAL APPEAL NO. 926 of 2021
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
