Kamleshbhai B. Rathod vs Bharatbhai Manubhai Jotangiya
2023 Latest Caselaw 4287 Guj

     R/CR.MA/9358/2023                              ORDER DATED: 09/06/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 9358 of 2023

                    In R/CRIMINAL APPEAL NO. 1212 of 2023

                                   With
                     R/CRIMINAL APPEAL NO. 1212 of 2023
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                             KAMLESHBHAI B. RATHOD
                                     Versus
                         BHARATBHAI MANUBHAI JOTANGIYA
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Appearance:
MAGANBHAI B BUNDELIYA(8328) 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 : 09/06/2023

                                  ORAL ORDER

1. Heard Mr. Maganbhai Bundeliya, 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 application is filed under Section 378(4) of Code of Criminal Procedure against the judgment and order dated 21.03.2023 passed by the learned 15 th Additional Chief Judicial Magistrate, Surat, in Criminal Case No.9250 of 2022. By the said judgment and order, the learned Magistrate has proceeded to record the acquittal of the respondent No.1 - original accused under Section 255(1) of the Cr.P.C. for the offence punishable under Section 138 of the Negotiable Instruments Act.

R/CR.MA/9358/2023 ORDER DATED: 09/06/2023

3. Mr. Bundeliya, learned advocate for the applicant - original complainant, has invited attention of this Court to the reasons recorded by the learned Magistrate, while recording acquittal. He has submitted that learned Magistrate has wrongly shifted the burden upon the complainant, more particularly, when the respondent - accused had not disputed his signature on the disputed cheque and the statutory presumption had arisen in favour of the complainant, which according to the complainant in absence of any probable defence being raised by the accused was not rebutted by the accused. He has submitted that the learned trial Court has taken into consideration three aspects; mainly on evaluation of the evidence of the complainant. Learned Magistrate has noticed that in cross-examination, the complainant has failed to disclose the date on which the hand loan was given to the accused. As against that he has submitted that in the complaint itself as well as in examination-in-chief, the complainant has categorically submitted that in the month of June, 2019, the complainant had given the hand loan to the accused. Secondly, the learned Magistrate has noticed that no written document has been brought on record in support of such claim by the complainant of having extended the hand loan neither any receipt has been obtained by the complainant. As against that learned advocate Mr. Bundeliya has submitted that there is no dispute being raised by the respondent accused about his signature on the disputed cheque. In such circumstances, the statutory presumption was available in favour of the complainant in view of Sections 118- A and 139 of the Negotiable Instruments Act. In absence of such document was not of such significant to discard the complaint under Section 138 of the Negotiable Instruments Act. Thirdly, the

R/CR.MA/9358/2023 ORDER DATED: 09/06/2023

learned Magistrate has taken into consideration the defence of the accused that such cheque was not handed over to the complainant to help the accused, which according to the learned advocate Mr. Bundeliya is without any evidence being raised by the accused in support of such defence. Mere denial or raising of such defence does not fall in the category of probable defence to be considered as rebuttal of presumption. He, therefore, urged this Court that leave to appeal be granted.

4. Considering the aforesaid submissions made by the learned advocate for the applicant - original complainant, in my view the applicant - original complainant has made out arguable case. Hence, this application seeking leave to appeal requires consideration. This application stands allowed. Rule is made absolute.

CRIMINAL APPEAL No.1212 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