Harishbhai Chandrakant Trivedi vs State Of Gujarat
2023 Latest Caselaw 8828 Guj

Gujarat High Court

Harishbhai Chandrakant Trivedi vs State Of Gujarat on 21 December, 2023

                                                                                   NEUTRAL CITATION




     R/CR.MA/22438/2023                            ORDER DATED: 21/12/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 22438
                          of 2023

                    In R/CRIMINAL APPEAL NO. 2812 of 2023

                                    With
                      R/CRIMINAL APPEAL NO. 2812 of 2023
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                      HARISHBHAI CHANDRAKANT TRIVEDI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MALAYKUMAR S PATEL(8901) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS VRUNDA C SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                             Date : 21/12/2023

                           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

07.10.2023 passed by the learned 3 rd Additional Chief Judicial

Magistrate First Class, Himmatnagar in Criminal Case

No.3968 of 2022.

NEUTRAL CITATION

R/CR.MA/22438/2023 ORDER DATED: 21/12/2023

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2. Heard, Mr. Malaykumar Patel, learned advocate

appearing for the applicant - original complainant and

perused the impugned judgment and order of the trial Court.

3. Mr. Malaykumar Patel, learned advocate for the

applicant - original complainant submits that though issuance

of the cheque and signature of the cheque was not disputed

and the demand notice was replied by the respondent -

accused, bare words with regard to the misusing of the

cheque was accepted without leading any probable defence,

which may be in the nature of preponderance of probability.

Learned advocate further submit that the learned trial Court

passed the judgment and order of acquittal only on the ground

that the financial capacity is not proved by the complainant,

though it was contended that from the retiral dues, which was

received by the complainant, the amount was lended. Learned

advocate submits that more weightage was given to the minor

discrepancy and presumption, which was in favour of the

complainant though not rebutted, the judgment and order of

acquittal was passed by the learned trial Court.

NEUTRAL CITATION

R/CR.MA/22438/2023 ORDER DATED: 21/12/2023

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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.

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