Gujarat High Court
A.S.Tarpolin Through Ammar ... vs Muffadal Kasim Kantawala ... on 11 July, 2023
Bench: Nisha M. Thakore
R/CR.MA/1482/2023 ORDER DATED: 11/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1482 of 2023
In R/CRIMINAL APPEAL NO. 167 of 2023
With
R/CRIMINAL APPEAL NO. 167 of 2023
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A.S.TARPOLIN THROUGH AMMAR SHABBIRBHAI TAMBUWALA (AMMAR
SABIRBHAI TAMBUWALA)
Versus
MUFFADAL KASIM KANTAWALA (MUFADDAL KASIM KANTAWALA)
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Appearance:
MR DJ BHATT(164) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS. M.H. BHATT, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 11/07/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION NO. 1482 of 2023
1. Heard Mr. D.J. Bhatt, learned advocate on record for the
applicant-original complainant.
2. Pursuant to the rule issued by this Court in delay condonation
application, learned advocate Mr. Aftab A. Ansari had appeared at one
stage and had prayed for time to file his Vakalatnama representing
the respondent No.1-original accused.
3. This Court, on various occasions, had adjourned the matter
R/CR.MA/1482/2023 ORDER DATED: 11/07/2023
considering the request of learned advocate for the respondent No.2.
However, the Court has proceeded with hearing of the present
application seeking leave to appeal in absence of any Vakalatnama
being filed by the respondent No.2.
4. Rule returnable forthwith. Learned APP waives service of notice
of rule for and on behalf of respondent-State.
5. This is an application filed by the applicant-original complainant,
seeking leave to appeal against the impugned judgment and order
dated 07.10.2022 passed by learned 9th Additional Sessions Judge,
Surat in Criminal Appeal No.462 of 2019, allowing the appeal
preferred by the respondent-original accused, thereby quashing and
setting aside the judgment and order of conviction dated 13.01.2015
passed by learned 11th Additional Senior Civil Judge & Additional Chief
Judicial Magistrate, Surat in Criminal Case No.3189 of 2015.
6. Mr. D.J. Bhatt, learned advocate on record for the applicant-
original complainant, has invited attention of this Court to the fact
that respondent-accused had failed to lead any oral or documentary
evidence before the learned trial court. He has submitted that further
statement of the applicant was recorded under Section 313 of Cr.P.C.,
R/CR.MA/1482/2023 ORDER DATED: 11/07/2023
however, no specific defence has emerged on record, which rebut the
presumption existed in favour of the original complainant. He
emphasizes on the fact that respondent-accused had not disputed his
signature on the cheque. The evidence of the Bank Officer has come
on record through the complainant, who has been examined as
witness by the complainant vide Exh.40 and Exh.49. He therefore,
submitted that presumption drawn in favour of the complainant with
regard to the legally enforceable debt existed between the parties,
has gone unchallenged.
6.1 Mr. D.J. Bhatt, learned advocate on record for the applicant-
original complainant, has further submitted that the learned
Additional Sessions Judge without appreciating the aforesaid fact on
incorrect evaluation of the evidence, which has emerged on record,
had arrived at an incorrect finding that the present applicant is not the
holder in due course. To substantiate his aforesaid submissions,
learned advocate Mr. D.J. Bhatt has relied upon the documents, more
particularly, the disputed cheque, which has come on record; and
has submitted that the cheque has been issued in the name
of firm i.e. the complainant. He has relied upon the documents
in the nature of income tax return and the certificate
R/CR.MA/1482/2023 ORDER DATED: 11/07/2023
issued by the Chartered Accountant, which goes to suggest that the
present applicant is the sole proprietor of the firm- A.S. Tarpolin. He
therefore, urged this Court to grant leave to appeal.
6.2 In support of his submissions, learned advocate Mr. D.J. Bhatt
has also relied upon the following authorities:
1. In the case of Rohitbhai Jivanlal Patel vs. State of
Gujarat and Anr. reported in AIR 2019 Supreme Court
1876;
2. In the case of P. Rasiya vs. Abdul Nazer and Anr.
reported in AIR Online 2022 SC 1373;
3. In the case of Kishan Rao vs. Shankargouda
reported in AIR 2018 Supreme Court 3173;
4. In the case of M. Abbas Haji vs. T.N.
Channakeshava reported in AIR 2019 Supreme Court
4617.
7. Having heard the learned advocate on record for the applicant
and having perused the record and proceedings, prima facie, the Court
finds that the present application seeking leave to appeal requires
consideration and the same is allowed, accordingly. Rule is made
absolute to the aforesaid extent.
R/CR.MA/1482/2023 ORDER DATED: 11/07/2023
ORDER IN R/CRIMINAL APPEAL NO. 167 of 2023
1. Admit.
2. Learned APP waives service of notice of admission for and on
behalf of respondent-State.
3. Issue bailable warrant of Rs. 10,000/- against respondent-
accused.
4. Appeal is expedited.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
