Harishbhai Bhailalbhai Patel vs Nileshkukmar Vinubhai ...
2023 Latest Caselaw 539 Guj

    R/CR.MA/938/2023                                     ORDER DATED: 17/01/2023




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 938 of 2023

                 In R/CRIMINAL APPEAL NO. 111 of 2023

                                 With
                   R/CRIMINAL APPEAL NO. 111 of 2023
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                   HARISHBHAI BHAILALBHAI PATEL
                              Versus
                NILESHKUKMAR VINUBHAI PATANVADIYA
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Appearance:
MR ANVESH V VYAS(5654) for the Applicant(s) No. 1
for the Respondent(s) No. 1
Ms. Monali Bhatt, Addl. PUBLIC PROSECUTOR for the Respondent(s)
No. 2
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
                  Date : 17/01/2023
                    ORAL ORDER

Heard Mr. Anvesh Vyas, learned advocate for the applicant-original complainant.

This is an application seeking leave of this Court to challenge the judgment and order of acquittal dated 27.09.2022 passed by the learned 5th Additional Chief Judicial Magistrate, Vadodara in Criminal Case No.28785 of 2021. By this order, the learned trial Court has recorded order of acquittal of respondent no.2 herein for the offence punishable under Section 138 of the Negotiable Instruments Act.

Mr. Vyas, learned advocate for the applicant has invited attention of this Court to the reasons recorded by the trial Court while passing the impugned order and has submitted that trial

R/CR.MA/938/2023 ORDER DATED: 17/01/2023

Court after satisfying with all the six ingredients essential to attract the offence punishable under Section 138 of the Negotiable Instruments Act, proceeded to record the order of acquittal on erroneous ground. He further submitted that the accused had not disputed his signature on the disputed cheque. In such circumstances, statutory presumption under Section 118 r/w Section 139 of the Negotiable Instruments Act would arise in favour of the original complainant. The burden was upon the accused to dislodge such presumption by leading cogent evidence. He, therefore, submitted that the trial Court unnecessary shifted burden upon the complainant and recorded the order of acquittal.

Considering the grounds raised in the memo of appeal and arguments canvassed by the learned advocate for the applicant, present application requires consideration. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted.

Order in Criminal Appeal:

Heard Mr. Anvesh Vyas, learned advocate for the applicant-original complainant.

Appeal is admitted. Learned Additional Public Prosecutor waives service of notice of admission on behalf of respondent-State.

R/CR.MA/938/2023 ORDER DATED: 17/01/2023

Registry is directed to issue bailable warrant in sum of Rs.10,000/- against private respondent no.1. Registry is directed to call for Record and Proceedings of the case from the concerned trial Court.

(NISHA M. THAKORE,J) KAUSHIK J. RATHOD