Gujarat High Court
Yogesh Hasmukhlal Mehta vs Amish Mahendrabhai Suratwala on 9 June, 2023
Bench: Nisha M. Thakore
R/CR.MA/9481/2023 ORDER DATED: 09/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9481 of 2023
In R/CRIMINAL APPEAL NO. 1229 of 2023
With
R/CRIMINAL APPEAL NO. 1229 of 2023
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YOGESH HASMUKHLAL MEHTA
Versus
AMISH MAHENDRABHAI SURATWALA
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Appearance:
MS SONAL D VYAS(999) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR HARDIK MEHTA ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 09/06/2023
ORAL ORDER
1. Heard Ms. Sonal D. Vyas, learned advocate for the applicant
- original complainant.
2. Rule returnable forthwith. Learned APP waives service of
Rule on behalf of the respondent No.2 State.
3. This is an application under Section 378(4) of Code of
Criminal Procedure seeking leave to appeal against the judgment
and order dated 28.02.2023 passed by the learned Additional
Chief Judicial Magistrate, Surat, in Special Criminal Case
No.79313 of 2021. By the said judgment and order, the learned
Magistrate has proceeded to record the acquittal of the respondent
- original accused.
R/CR.MA/9481/2023 ORDER DATED: 09/06/2023
4. Ms. Vyas, learned advocate has invited attention of this
Court to the reasons assigned by the learned Magistrate, while
recording the impugned order of acquittal of the respondent -
original accused. She has submitted that indisputably, the accused
has not responded to the legal notice. She has further submitted
that there is no challenge to the signature of the accused on the
disputed cheque. Inspite of the aforesaid fact, the learned
Magistrate has proceeded to shift the burden upon the original
complainant by taking into consideration the cross-examination of
the complainant raising doubt about the existence of legally
enforceable debt or the liability.
5. Considering the submissions made by the learned advocate
for the applicant - original complainant and having perused the
impugned judgment and order of acquittal, the Court finds that the
accused has made attempt to raise probable defence by
challenging the financial capacity of the original complainant.
Indisputably, no reply has been given by the accused to the
statutory notice served by the original complainant. Prima facie,
the Court finds that as laid down by the Hon'ble Supreme Court in
the case Tedhi Singh Vs. Narayan Das Mahant reported in
2022(6) SCC 735, wherein the Hon'ble Supreme Court has held
that while appreciating the totality of the evidence, the Court
concerned has to examine that the accused has shown that the
case of the complainant is in peril for the reasons when the
complainant case is placed while he is in the witness box. Unless
the case is set up in the reply notice to the statutory notice sent,
that the complainant did not have the wherewithal, it cannot be
expected of the complainant to initially lead evidence to show that
he had the financial capacity. Hence, present application seeking
R/CR.MA/9481/2023 ORDER DATED: 09/06/2023
leave to appeal requires consideration. Present application stands
allowed. Rule is made absolute.
CRIMINAL APPEAL No.1229 of 2023:
The appeal is ADMITTED. Learned APP waives
service of notice of admission on behalf of respondent-State.
Issue bailable warrant of in the sum of Rs. 10,000/-
against private respondent No.1.
R & to be called for.
(NISHA M. THAKORE,J)
Y.N. VYAS
