Gujarat High Court
Rosewood Creation Thro Ronak Ramakant ... vs State Of Gujarat on 4 December, 2023
NEUTRAL CITATION
R/CR.MA/13719/2023 ORDER DATED: 04/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 13719
of 2023
In R/CRIMINAL APPEAL NO. 1852 of 2023
With
R/CRIMINAL APPEAL NO. 1852 of 2023
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ROSEWOOD CREATION THRO RONAK RAMAKANT PODDAR
Versus
STATE OF GUJARAT
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Appearance:
MR PRANAY R RAJPUT(11815) for the Applicant(s) No. 1
MR. R.D.KINARIWALA(6146) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS VRUNDA C SHAH, APP PUBLIC PROSECUTOR for the Respondent(s)
No. 1
RULE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 04/12/2023
COMMON ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION:
1. This is an application by the applicant - original
complainant under Section 378(4) of the Code of Criminal
Procedure, 1973, seeking leave of this Court to present an
appeal against the judgment and order of acquittal dated
26.06.2023 passed by the learned Additional Chief Judicial
Magistrate, Surat in Criminal Case No.31899 of 2019.
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R/CR.MA/13719/2023 ORDER DATED: 04/12/2023
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2. Heard, learned advocates appearing for respective
parties and perused the impugned judgment and order of the
trial Court.
3. Mr. Pranay Rajput, learned advocate submits that there
was transaction between the complainant and the accused
with regard to the purchase of Viscose Moss Crape 63 and as
per the instructions by the accused, the said goods were
delivered at F.S. Exports of 24, Satya Estate, Narol,
Ahmedabad and for the payment of the said goods, seven
cheques were issued. Out of the said seven cheques, two
cheques were honoured and the amount was credited in the
account of the complainant. Learned advocate further submtis
that though the demand notice was issued by the complainant
on 10.06.2019 and the said notice was received by the
accused on 15.06.2019, but neither the accused complied with
the notice nor replied to the same. Learned advocate further
drawn attention of this Court with regard to the probable
defence of the respondent - accused, wherein, it is not
disputed by the respondent accused with regard to the
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R/CR.MA/13719/2023 ORDER DATED: 04/12/2023
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receiving of the goods. However, it is submitted that the
learned trial Court has acquitted the respondent - accused
only on the ground that e-way bills, which are produced on
record below Exh.13, 17, and 21, shows that place of delivery
at Ahmedabad and therefore, it is doubtful that the
respondent had received the goods or not. Learned advocate
further submits that the accused failed to prove rebut the
presumption, which is in favour of the complainant and two
cheques honoured out of seven cheques, however, the learned
trial Court had shifted onus on the complainant to prove the
case. Therefore, learned advocate prays to grant the leave and
to admit the appeal.
4. Considering the avernments made in the application and
submissions made by the learned advocates appearing for the
respective parties, this Court finds that there is some
arguable case in favour of the applicant, therefore, leave, as
prayed for, is granted. This application is allowed.
ORDER IN CRIMINAL APPEAL:
1. The appeal is admitted. Learned APP waives service of
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R/CR.MA/13719/2023 ORDER DATED: 04/12/2023
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notice of admission on behalf of respondent No.1 - State.
2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees
Five Thousand only) against the respondent - original
accused.
3. Record and proceedings be called for from the
concerned court. Registry is directed to list the Criminal
Appeal in seriatim.
(M. K. THAKKER,J)
A. B. VAGHELA
