Gujarat High Court
Amit Narendrabhai Patel vs Pragneshbhai Dashrathbhai Patel on 31 August, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/17835/2022 ORDER DATED: 31/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17835 of 2022
In R/CRIMINAL APPEAL NO. 1914 of 2022
With
R/CRIMINAL APPEAL NO. 1914 of 2022
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AMIT NARENDRABHAI PATEL
Versus
PRAGNESHBHAI DASHRATHBHAI PATEL
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Appearance:
MR MB RANA(2760) for the Applicant(s) No. 1
MR MANISH J PATEL(2131) for the Respondent(s) No. 1
Ms. Monali Bhatt, Addl.PUBLIC PROSECUTOR for the Respondent(s)
No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 31/08/2023
ORAL ORDER
1. Leave to amend the cause title. Let, amendment be carried
out forthwith.
2. Heard Mr. M B Rana, learned advocate for the applicant-
original complainant, Mr. Manish J Patel, learned advocate for
the respondent no.1 and Ms. Monali Bhatt, learned Additional
Public Prosecutor for the respondent State.
3. This application is filed seeking leave to appeal under
Section 378(4) of the Code of Criminal Procedure challenging the
judgment and order dated 26.07.2022 passed below Exh.24 in
Criminal Case No.137 of 2014 passed by the learned Additional
Chief Judicial Metropolitan Magistrate, NI Court No.27,
Ahmedabad. By the said judgment and order, the learned
Magistrate has proceeded to record the acquittal of the original
accused for the offences punishable under Section 138 of the
NEUTRAL CITATION
R/CR.MA/17835/2022 ORDER DATED: 31/08/2023
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Negotiable Instruments Act.
4. Learned advocate for the applicant has invited attention of
this Court to the reasons assigned by the learned Magistrate
while recording impugned order of acquittal. On close reading of
the reasons assigned by the learned Magistrate, the Court
notices that the learned Magistrate has proceeded to record the
acquittal mainly on the ground that the applicant had failed to
lead any cogent material on record to show that the applicant
had financial capacity to part with the amount of Rs.25 lakhs to
the respondent accused. The attention of this Court is invited to
the defence raised by the respondent-accused wherein it has
been contended that the bank account was opened under
coercion and the cheque signed by the respondent no.3 was
misused by one Jalpeshkumar @ Lalabhai Patel. Prima facie, the
Court notices that no cogent material has been led by the
respondent - accused before the trial Court. In support of such
defence, it is submitted before this Court by the learned advocate
for the applicant that no complaint has been filed by the accused
with regard to misuse of cheque and issuance of cheque under
coercion. On the other hand, the Court notices that the
signature on the disputed cheque has not been denied by the
respondent-accused. In such circumstances, initial burden is
discharged by the complainant that the cheque was issued by
the accused and signature and the issuance of cheque being not
disputed by the accused, the onus was upon the accused to
prove the contrary that the cheque was not for any debt or other
liability. As held by the Hon'ble Supreme Court in the case of
P.Rasiya vs. Abdul Nazer and Another reported in 2022 JX (SC)
997, presumption under Section 139 of the Act being statutory
NEUTRAL CITATION
R/CR.MA/17835/2022 ORDER DATED: 31/08/2023
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presumption had remained intact. Learned advocate for the
applicant has relied upon the judgment of the Hon'ble Supreme
Court in the case of Tedi Singh vs. Narayan Dass Mahant
reported in 2022 Live Law (SC) 275 and has submitted that
dishonor of cheque, no complaint was given for loss of cheque
book. In absence of denial by the accused about the signature on
cheque in question being not put by him, there is no rebuttal of
presumption which has otherwise arose in favour of the original
complainant.
5. Considering overall circumstances, the Court finds that he
present application seeking leave to appeal requires
consideration. Hence, the present application is allowed and
Leave to Appeal, as prayed for, is hereby granted. Rule is made
absolute.
Order in Criminal Appeal No.1914 of 2022
Admit. Learned Additional Public Prosecutor waives service of
admission on behalf of respondent State and Mr. Manish Patel,
learned advocate waives service of admission on behalf of the
respondent no.1. Registry is directed to call for the Record and
Proceedings of the case from the concerned Court.
Registry is directed to notify the present appeal for hearing on
3.10.2023.
(NISHA M. THAKORE,J)
KAUSHIK J. RATHOD
