Saiyed Gulamhusain @ Gulamnabi ... vs Sumara Fakruddin Usmanbhai
2023 Latest Caselaw 1952 Guj

     R/CR.MA/13594/2022                                       ORDER DATED: 28/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


             R/CRIMINAL MISC.APPLICATION NO. 13594 of 2022
                  In R/CRIMINAL APPEAL NO. 1449 of 2022

                                     With
                       R/CRIMINAL APPEAL NO. 1449 of 2022


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             SAIYED GULAMHUSAIN @ GULAMNABI JAFARMIYA
                              Versus
                    SUMARA FAKRUDDIN USMANBHAI
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Appearance:
MR A S TIMBALIA(7372) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
MS ASMITA PATEL, APP for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                 Date : 28/02/2023

                                  ORAL ORDER

1. Though served, none has remained present on behalf of the respondent no.1.

2. RULE. Learned APP waives service of notice of rule for and on behalf of the respondent no.2 - State.

3. 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 recorded by the Chief Judicial Magistrate, Mehsana, dated 22.6.2022, in Criminal Case No.2964 of 2016.

R/CR.MA/13594/2022 ORDER DATED: 28/02/2023

4. The applicant is the original complainant. Learned advocate for the applicant submitted that the only reason for recording the acquittal of the respondent no.1 is the discrepancy in the name of the applicant in the cheque and the name which is reflected in the notice.

5. Learned advocate for the applicant has drawn attention of this Court to the impugned judgment and order to submit that the witness - bank employee was examined by the accused person who has categorically admitted that the account in which the cheque was deposited and the account of the present applicant is one and the same. It is also admitted by the witness

- bank employee that wherever there is a discrepancy in the name, as in the facts of the present case, then the cheque is dishonoured with the endorsement of 'refer to the drawer', whereas, in the facts of the present case, the cheque is dishonoured with the endorsement of 'insufficient funds'.

6. In view of the aforesaid, a case is made out for grant of special leave to appeal. Application is allowed. Rule made absolute.

(A.Y. KOGJE, J.) /MOINUDDIN