Gujarat High Court
Dipsang Kalubhai Gohil vs State Of Gujarat on 31 August, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/13240/2021 ORDER DATED: 31/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13240 of 2021
In R/CRIMINAL APPEAL NO. 1019 of 2021
With
R/CRIMINAL APPEAL NO. 1019 of 2021
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DIPSANG KALUBHAI GOHIL
Versus
STATE OF GUJARAT
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Appearance:
MR NILESH I JANI(3558) for the Applicant(s) No. 1
MR ALINAVAZ A VAKIL(10191) for the Respondent(s) No. 2
MS MONALI BHATT ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 31/08/2023
ORAL ORDER
1. Heard Mr. Nilesh Jani, learned advocate for the applicant -
original complainant and Mr. Alinawaz Vakil, learned advocate for
the respondent No.2 - original accused.
2. This application is filed seeking leave to appeal against the
judgment and order dated 03.06.2021 passed by the learned 2 nd
Judicial Magistrate First Class, Mahuva, in Criminal Case No.244
of 2016. By the said judgment and order, the learned Magistrate
has proceeded to record the acquittal of the present respondent -
original accused for the offence 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 impugned judgment and order of acquittal. He has
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R/CR.MA/13240/2021 ORDER DATED: 31/08/2023
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submitted that the learned Magistrate has failed to consider the
fact that the respondent No.2 has admitted his signature on the
cheque and it has been dishonoured for insufficient funds. In such
circumstances, having noticed that the basic ingredients of Section
138 of the Negotiable Instruments Act being complied, the offence
under Section 138 of the Negotiable Instruments Act is made out.
Learned advocate has heavily relied upon the promissory note
dated 05.08.2010 executed by the respondent No.2. It is submitted
that apart from the aforesaid presumption, the cogent material in
the form of promissory note has come on record to indicate that
the cheque was issued towards legally enforceable debt. He,
therefore, urged this Court to grant leave to appeal.
4. On the other hand, Mr. Vakil, learned advocate has
vehemently objected to grant of leave to appeal. He has relied
upon the order of the learned trial Court and has submitted that
various infirmities have emerged on record during the course of
cross-examination of the complainant. The respondent - original
accused has been successful in bringing on record the major
contradictions in the case put forward by the complainant as
against what has been recorded during the cross-examination of
the complainant. He has submitted that the case put forwarded by
the complainant in the complaint is that the amount of Rs.7 Lakhs
was borrowed by the accused for purchase of house, whereas in
his cross-examination, the accused has failed to response the
question as to whether any house is in existence in the name of
the accused. The attention of this Court is invited to the FIR
registered by the accused against the complainant, who appears
to be a retired Mamlatdar. It is submitted that in fact, the
complainant was facing charge of corruption and he was
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R/CR.MA/13240/2021 ORDER DATED: 31/08/2023
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suspended. In the compliant filed by the accused against the
complainant, the charge-sheet has been filed and the complainant
was released on bail in the aforesaid criminal case. He has heavily
relied upon the cross-examination of the complainant, wherein it
has transpired on record that the accused was not even present in
Bhavnagar District during the aforesaid period of alleged
transaction. In such circumstances, the very execution of the
promissory note has been challenged in his cross-examination.
Lastly, learned advocate has relied upon the fact that the basic
requirement of provision of Section 138 of the Negotiable
Instruments Act has not been complied with by the complainant.
The attention of this Court is invited to the fact that even legal
notice issued by the complainant has not been served upon the
complainant, though acknowledgment slip has been placed on
record vide Exhibit 11, however, the same has been controverted
in cross-examination. He, therefore, objected to grant of leave to
appeal.
5. Considering the arguments of the learned advocates
appearing for the respective parties and having perused the
impugned judgment and order, this Court finds that the arguable
case is raised by the learned advocate for the applicant, which
requires close reappreciation of the evidence, which has emerged
on record before the trial Court. The application seeking leave to
appeal requires consideration. Hence, this application seeking
leave to appeal is granted. Rule is made absolute.
CRIMINAL APPEAL No.1019 of 2021:
ADMIT. Learned APP waives service of notice of admission
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R/CR.MA/13240/2021 ORDER DATED: 31/08/2023
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on behalf of the respondent No.1 - State and learned advocate Mr.
Vakil waives service of notice of admission on behalf of the
respondent No.2 - original accused.
Let R & P be called for.
(NISHA M. THAKORE,J)
Y.N. VYAS
