Gujarat High Court
Jashbhai Desaibhai Patel Thro Poa ... vs Rakesh Jhaverbhai Patel ... on 11 January, 2023
Bench: Nisha M. Thakore
R/CR.MA/7749/2022 ORDER DATED: 11/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7749 of 2022
In R/CRIMINAL APPEAL NO. 842 of 2022
With
R/CRIMINAL APPEAL NO. 842 of 2022
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JASHBHAI DESAIBHAI PATEL THRO POA RAMANBHAI DESAIBHAI PATEL
Versus
RAKESH JHAVERBHAI PATEL PROPRIETOR OF JALSA RESTAURANT
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Appearance:
PARTH Y PATHAK(7528) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR. KANVA ANTANI, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 11/01/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION NO. 7749 of 2022
1. Heard Mr. Parth Y. Pathak, learned advocate on record for the
applicant- original complainant.
2. This is an application, preferred under Sub-Section (4) of Section
378 of Criminal Procedure Code, 1973, seeking permission to
challenge the judgment and order of acquittal dated 27.01.2022
passed by learned 26th Additional Chief Judicial Magistrate, Vadodara
in Criminal Case No.54189 of 2014.
R/CR.MA/7749/2022 ORDER DATED: 11/01/2023
3. Learned advocate Mr. Parth Y. Pathak has invited attention of
this Court to the findings and reasons recorded by the trial court while
recording the order of acquittal. He has submitted that trial court has
not believed the case of the complainant while recording the order of
acquittal mainly on two grounds. Firstly, that the complainant has
failed to establish his financial ability to advance the hand loan of an
amount of Rs.8,10,000/- to the accused. Secondly, on the ground that
the complainant himself had not entered the witness box and the
power of attorney being examined had no personal knowledge about
the transaction.
4. Learned advocate Mr. Parth Y. Pathak has further invited my
attention to the cross examination of the power of attorney, who has
entered the witness box on behalf of the complainant. He has further
submitted that in his cross examination the fact that the complainant
and his son are holding various parcels of land, have been brought on
record. Even otherwise, the signature on the disputed cheque has not
been disputed by the accused. The trial court ought to have believed
the case of the complainant so far as the issue of power of attorney is
concerned. He has further invited my attention to the copy of the
special power of attorney, which is placed on record and submitted
that the complainant had authorized his real brother to appear in the
proceedings before the trial court. He, therefore, submitted that the
R/CR.MA/7749/2022 ORDER DATED: 11/01/2023
trial court has unnecessarily not given weightage to the deposition of
the power of attorney. As being the real brother, he was aware about
the transaction. By making the aforesaid submission, he has prayed to
allow the present application.
5. Considering his submissions, present application seeking leave
to appeal requires consideration and the same is allowed.
ORDER IN R/CRIMINAL APPEAL NO. 842 of 2022
1. The appeal is ADMITTED. Mr. K.M. Antani, learned APP waives
service of notice of admission for and on behalf of respondent-State.
2. Issue bailable warrant of Rs.10,000/- against the private
respondent.
3. Registry is directed to call for record & proceedings before the
next date of hearing.
(NISHA M. THAKORE,J)
SUYASH
