Gujarat High Court
Pareshbhai Sagarmal Shah vs State Of Gujarat on 29 August, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/23220/2019 ORDER DATED: 29/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23220 of 2019
With
R/CRIMINAL APPEAL NO. 2041 of 2023
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PARESHBHAI SAGARMAL SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR DHAVAL V SHAH(6634) for the Applicant(s) No. 1
MR BC DAVE(245) 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 : 29/08/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC. APPLICATION NO. 23220 of 2019
1. Heard learned advocates appearing for the respective parties.
2. Rule returnable forthwith. Learned advocate Mr. B.C. Dave
waives service of notice of rule on behalf of respondent No.2-original
accused and learned APP Ms. M.H. Bhatt waives service of notice of
rule on behalf of respondent-State.
3. This application is filed under Sub-Section (4) of Section 378 of
Criminal Procedure Code, 1973 challenging the order of acquittal
dated 22.08.2019 passed by learned Additional Chief Metropolitan
NEUTRAL CITATION
R/CR.MA/23220/2019 ORDER DATED: 29/08/2023
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Magistrate, Ahmedabad in Criminal Case No.834 of 2016.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
relied upon the copy of return memo, which has been brought on
record vide Exh.8. It is submitted that the cheque bearing date
13.01.2016 was presented for realization of the amount, which was
dishonoured on 02.03.2016. The legal notice dated 01.03.2016 was in
fact, issued on 09.03.2016, which was received on 12.03.2016, which
was responded by the respondent-accused by giving reply on
17.03.2016. By referring to the aforesaid dates, learned advocate for
the applicant has submitted that the learned Magistrate committed
serious error in not appreciating the aforesaid documents, which have
been brought on record and have been duly admitted as evidence.
Learned advocate for the applicant has further relied upon the
invoices, which have also been brought on record vide Exh.17, which
goes to indicate that in case of failure of the respondent-accused for
payment of the amount raised in the bill, the applicant was entitled
for realization of 18% of the interest. He therefore, urged this Court
to grant leave to appeal.
NEUTRAL CITATION
R/CR.MA/23220/2019 ORDER DATED: 29/08/2023
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5. Considering the submissions made by learned advocate for the
applicant and having perused the record & proceedings as well as the
grounds raised in the appeal memo, prima facie, the court finds that
an arguable case is made out by the learned advocate for the
applicant. Hence, the present application seeking leave to appeal is
granted. Rule is made absolute.
ORDER IN R/CRIMINAL APPEAL NO. 2041 OF 2023
1. Admit.
2. Learned APP waives service of notice of admission for and on
behalf of respondent-State and learned advocate Mr. B.C. Dave
waives service of notice of admission on behalf of respondent No.2-
original accused
3. The appeal is expedited. Registry is hereby directed to call for
Record & Proceedings before the next date of hearing.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
