Gujarat High Court
Manojbhai Chinubhai Solanki vs State Of Gujarat on 14 December, 2023
NEUTRAL CITATION
R/CR.MA/22196/2023 ORDER DATED: 14/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 22196
of 2023
In R/CRIMINAL APPEAL NO. 2757 of 2023
With
R/CRIMINAL APPEAL NO. 2757 of 2023
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MANOJBHAI CHINUBHAI SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
MR.RUCHIR R JOSHI(7241) for the Applicant(s) No. 1
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 : 14/12/2023
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
14.08.2023 passed by the learned 12 th Additional Chief
Judicial Magistrate, Rajkot in Criminal Case No.10739 of
2021.
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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. Ruchir Joshi, learned advocate for the applicant
submits that the judgment and order of acquittal was passed
on two main grounds; one is time barred debt and another is
the financial capacity of the complainant was not proved.
Learned advocate submits that it was held by the learned trial
Court that the debt, which was of the year 2016, for which,
the cheque was issued in the year 2021. Learned advocate
relied on the Section-18 of the Limitation Act, which
reproduced herein-below.
Section- 18. Effect of acknowledgment in writing.--
(1) Where, before the expiration of the prescribed period
for a suit of application in respect of any property or right,
an acknowledgment of liability in respect of such property
or right has been made in writing signed by the party
against whom such property or right is claimed, or by any
person through whom he derives his title or liability, a
fresh period of limitation shall be computed from the time
when the acknowledgment was so signed.
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R/CR.MA/22196/2023 ORDER DATED: 14/12/2023
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(2) Where the writing containing the acknowledgment is
undated, oral evidence may be given of the time when it
was signed; but subject to the provisions of the Indian
Evidence Act, 1872 (1 of 1872), oral evidence of its
contents shall not be received. Explanation.--For the
purposes of this section,--
(a) an acknowledgment may be sufficient though it
omits to specify the exact nature of the property or
right, or avers that the time for payment, delivery,
performance or enjoyment has not yet come or is
accompanied by a refusal to pay, deliver, perform or
permit to enjoy, or is coupled with a claim to set-off, or
is addressed to a person other than a person entitled to
the property or right;
(b) the word "signed" means signed either personally
or by an agent duly authorised in this behalf; and
(c) an application for the execution of a decree or order
shall not be deemed to be an application in respect of
any property or right.
By submitting this, learned advocate submits that on the
day, when the cheque was issued, the respondent - accused
had acknowledged the debt and therefore, fresh limitation
period would start from the date, when the cheque was iued.
Therefore, there is no any time barred debt as held by the
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learned trial Court. Learned advocate further submits that so
far as the other ground i.e. financial capacity is concerned, at
the first point of time, i.e. the reply of the given notice, the
respondent - accused had not challenged the financial
capacity of the complainant to lend the amount neither
statement under Section-313 of the Cr.P.C., the respondent -
accused had defended the case on the basis of financial
capacity. Learned advocate further submits that initial burden
to rebut the presumption is on the respondent - accused
under Section-118 and 139 of the N.I. Act. However, without
discharging that burden, onus was shifted on the complainant
to prove the case on the basis of financial capacity. Learned
advocate submits that as the order passed by the learned
Court below is without any cogent reason, the same was
required to be interfered and therefore, it was prayed to allow
this application seeking Leave to prefer an appeal and admit
the criminal 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
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R/CR.MA/22196/2023 ORDER DATED: 14/12/2023
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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.
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
