Gujarat High Court
Jayprakash Hasmukhlal Shah vs M/S Alaknanda Tubes on 7 December, 2023
NEUTRAL CITATION
R/CR.MA/20824/2023 ORDER DATED: 07/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 20824
of 2023
In R/CRIMINAL APPEAL NO. 2709 of 2023
With
R/CRIMINAL APPEAL NO. 2709 of 2023
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JAYPRAKASH HASMUKHLAL SHAH
Versus
M/S ALAKNANDA TUBES
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Appearance:
JAIVIK UDAY BHATT(7319) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3
MS DIVYANGNA JHALA, APP for the Respondent(s) No. 4
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 07/12/2023
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
15.04.2023 passed by the learned Chief Judicial Magistrate,
Kalol, Gandhinagar in Criminal Case No.1437 of 2018.
NEUTRAL CITATION
R/CR.MA/20824/2023 ORDER DATED: 07/12/2023
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2. Heard, learned advocates appearing for respective
parties and perused the impugned judgment and order of the
trial Court.
3. Learned advocate, Mr. Jaivik Uday Bhatt for the
applicant submits that though signature on the cheque and
the agreement, which was accepted and not disputed by the
respondent-accused, the learned trial Court acquitted the
respondent on the two grounds that (1) the agreement was
not executed in presence of the complainant and (2) the
amount, which was returned back i.e. of Rs.25,00,000/-
against advance of Rs.1 Crore was not endorsed as per
Section 56 of the Negotiable Instruments Act. Learned Court
has further observed in the impugned order that as the said
amount is not mentioned in the notice, necessary ingredients
mentioned in the Negotiable Instruments Act not satisfied.
Learned advocate, Mr. Bhatt, submits that whether the
agreement was executed in presence of the complainant or
not that would not relevant as execution of the agreement and
the signature is not denied by the respondent-accused during
his further statement under Section 313 of the Code of
NEUTRAL CITATION
R/CR.MA/20824/2023 ORDER DATED: 07/12/2023
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Criminal Procedure. Learned advocate, Mr. Bhatt, submits
that so far as amount of Rs.15,12,000/- is concerned, the case
of the complainant from the beginning is that amount was lent
for expansion and during the cross examination, it was
admitted by the complainant that an amount of Rs.15,12,000/-
is deposited towards the interest for the period of one year
and is deposited with the Bank on different dates. Therefore,
endorsing the debt, under Section 56 of the Negotiable
Instruments Act would not require and therefore, the acquittal
on that ground is bad in law.
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
notice of admission on behalf of respondent no.4 - State and
Mr. Priyam Gandhi, learned advocate waives service of notice
NEUTRAL CITATION
R/CR.MA/20824/2023 ORDER DATED: 07/12/2023
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of admission on behalf of respondent nos.2 and 3.
2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees
Five Thousand only) against the respondent no.1 - 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
