Gujarat High Court
Hasanbin Mohammad Laiji vs State Of Gujarat on 11 December, 2023
NEUTRAL CITATION
R/CR.MA/660/2022 ORDER DATED: 11/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 660 of
2022
In R/CRIMINAL APPEAL NO. 57 of 2022
With
R/CRIMINAL APPEAL NO. 57 of 2022
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HASANBIN MOHAMMAD LAIJI
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MR NIRAD D BUCH(4000) for the Applicant(s) No. 1
MR.KISHORE PRAJAPATI(6305) for the Respondent(s) No. 2
MS DIVYANGNA JHALA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 11/12/2023
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
28.09.2021 passed by the learned 10 th Additional Chief
Judicial Magistrate, Jamnagar in Criminal Case No.1288 of
2016.
NEUTRAL CITATION
R/CR.MA/660/2022 ORDER DATED: 11/12/2023
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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. Buch, learned advocate for the applicant submits
that though the signature on the cheque was not disputed by
the respondent - accused, neither any defence was led with
regard to the issuance of the cheque except mere words that
the cheque was issued towards the security, was believed by
the learned trial Court. Learned advocate had drawn attention
of this Court with regard to the cross-examination conducted
by the respondent - accused of the complainant, wherein, it
transpired that even prior to this transaction, earlier also
Rs.20,000/- was lent and at that point of time, a cheque was
issued, which was taken back on the repayment of
Rs.20,000/-. Learned advocate further drawn the attention of
this Court with regard to the financial capacity, which comes
in the cross-examination, wherein, the complainant had
admitted that he is having the two accounts in different banks
and at present, having the balance of Rs.51,000/- and addition
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R/CR.MA/660/2022 ORDER DATED: 11/12/2023
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to that there is a cash on hand of Rs.15,000/- to 20,000/-.
Learned advocate by showing the same, submits that in view
of the above mentioned aspect, it cannot be disputed that the
complainant was not having financial capacity to lend an
amount of Rs.80,000/-. Learned advocate Mr. Buch further
submits that though the presumption, which is in favour of
the complainant under Section-118 and 139 of the N.I. Act,
was not rebutted by the respondent - accused, the learned
trial Court had acquitted the respondent - accused from the
charges. Learned advocate further submits that while
acquitting the respondent - accused, the learned trial Court
had accepted the bare word of the respondent - accused and
therefore, prayed that the judgment and order of the acquittal
is required to be interfered.
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.
NEUTRAL CITATION
R/CR.MA/660/2022 ORDER DATED: 11/12/2023
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ORDER IN CRIMINAL APPEAL:
1. The appeal is admitted. Learned APP waives service of
notice of admission on behalf of respondent no.1 - State and
Mr. Kishore Prajapati, learned advocate waives service of
notice of admission on behalf of respondent no.2 - accused.
2. 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
