Gujarat High Court
Falguniben H. Patel vs Vinodbhai Haribhai Amreliya on 28 February, 2023
Bench: A.Y. Kogje
R/CR.MA/14315/2022 ORDER DATED: 28/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 14315 of 2022
In R/CRIMINAL APPEAL NO. 1549 of 2022
With
R/CRIMINAL APPEAL NO. 1549 of 2022
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FALGUNIBEN H. PATEL
Versus
VINODBHAI HARIBHAI AMRELIYA
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Appearance:
KRUTARTH K DESAI(9662) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
MR HK 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. The application is filed under Section 378 of the Code of
Criminal Procedure for special leave to appeal against the
judgment of acquittal recorded by an order dated 1.6.2022 by
the 3rd Civil Judge and JMFC, Bharuch in Criminal Case
No.2289 of 2021.
2. Learned advocate for the applicant submits that the
acquittal was recorded mainly on two grounds; firstly, being that
the legally enforceable debt as claimed by the applicant was
time-barred by considering the date on which the subject
amount was given by the applicant to the respondent-accused,
and the other ground, being the discrepancy in the amount on
the basis of the evidence of the applicant herself.
R/CR.MA/14315/2022 ORDER DATED: 28/02/2023
3. With regard to the ground of limitation, learned advocate
for the applicant has successfully drawn attention of this Court
that the trial Court has relied upon a decision of the Kerala High
Court in the case of Sasseriyil Joseph vs. Devassia, reported
in (2000) 3 KLT 533, which has been overruled by a Division
Bench of the same Court (Ramakrishnan vs. Parthasaradhy,
reported in (2003) 2 KLT 613) by categorically holding that the
law declared under the aforesaid judgment does not lay down
the correct principle of law. In the opinion of the Court, this
itself is a sufficient ground to grant leave to appeal in favour of
the applicant.
4. Learned advocate for the respondent, opposing the
application for leave to appeal, has submitted that the evidence
of the complainant would indicate that the cheque amount was
given, wherein an amount of Rs.4 lakh was paid by the
applicant, whereas the amount of Rs.2 lakh, at the relevant time,
was paid by the husband (since deceased) of the applicant.
5. In the opinion of the Court, such a discrepancy was only
reflecting the source and was in respect to the question put by
the respondent in the cross-examination, to disclose the source
of the cheque amount at the relevant time when paid to the
respondent-accused.
6. In the opinion of the Court, prima facie, this does not
appear to be sufficient to rebut the presumption, which is in
R/CR.MA/14315/2022 ORDER DATED: 28/02/2023
favour of the applicant, considering the negotiable instrument
(cheque), the date and the signature being undisputed.
7. 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
