Gujarat High Court
Anilkumar Jayantibhai Patel vs State Of Gujarat on 7 December, 2023
NEUTRAL CITATION
R/CR.MA/21656/2023 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. 21656
of 2023
In R/CRIMINAL APPEAL NO. 2707 of 2023
With
R/CRIMINAL APPEAL NO. 2707 of 2023
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ANILKUMAR JAYANTIBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
KAMLESH B PATEL(8636) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3,4
MS DIVYANGNA JHALA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 07/12/2023
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
04.10.2023 passed by the learned 9 th Additional Judicial
Magistrate First Class, Mehsana in Criminal Case No.9302 of
2021.
NEUTRAL CITATION
R/CR.MA/21656/2023 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. Mr. Kamlesh Patel, learned advocate for the appellant
submits that the presumption, which is in favour of the
complainant, was not rebutted by the respondent - accused.
The bare words with regard to the repayment of the loan was
accepted. Learned advocate drawn the attention of this Court
with regard to the cross-examination of the complainant,
wherein, it is averred that the cheque of Rs.76,42,319/- was
given towards the outstanding of two loan accounts. The loan
statement, which was produced below Exh.26 showing that
after repayment of some of the installments, the outstanding
dues as on date i.e.31.05.2021, is the cheque amount. Learned
advocate has drawn attention of this Court with regard to the
cross-examination of the accused no.2 below Exh.59, wherein,
he himself admitted that he availed the loan facility of Rs.25
lakh and Rs.84 lakh and had executed the loan agreement and
sign after reading the same. He admits that the amount,
NEUTRAL CITATION
R/CR.MA/21656/2023 ORDER DATED: 07/12/2023
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which is deposited with the bank and the bank had not
credited in his loan account and for that, there is no evidence.
He himself has admitted that the loan account was declared
as N.P.A. and despite various demands, payment of loan was
not made. Learned advocate further submits that though the
complainant, who is the financial institution, had discharged
his initial burden and the respondent - accused failed to lead
any probable defence, the learned trial Court had acquitted
the respondent - accused and therefore, it was prayed for to
grant the Leave to prefer an 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
notice of admission on behalf of respondent - State.
NEUTRAL CITATION
R/CR.MA/21656/2023 ORDER DATED: 07/12/2023
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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
