Gujarat High Court
Chandrakant Popatlal Vaghela vs State Of Gujarat on 13 June, 2023
Bench: Nisha M. Thakore
R/CR.MA/4225/2023 ORDER DATED: 13/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4225 of 2023
In R/CRIMINAL APPEAL NO. 479 of 2023
With
R/CRIMINAL APPEAL NO. 479 of 2023
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CHANDRAKANT POPATLAL VAGHELA
Versus
STATE OF GUJARAT
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Appearance:
MR SHAILESH T DESAI(10670) for the Applicant(s) No. 1
MS.HEMALI T PARMAR(9762) for the Applicant(s) No. 1
BHARATKUMAR K VIZODA(8026) for the Respondent(s) No. 2
Ms. Monali Bhatt, Addl.PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 13/06/2023
ORAL ORDER
1.0. Heard Mr. Shailesh Desai, learned advocate for the
applicant - original complainant and Mr. Vizoda, learned
advocate for the respondent no.2- original accused.
2.0. This application is filed under Section 378(4) of the Code of
Criminal Procedure seeking leave against the judgment and
order of acquittal dated 26.09.2022 passed by the learned 2 nd
Additional Chief Judicial Magistrate, Bhuj in Criminal Case
No.1712 of 2016, whereby, the learned Judge has recorded
acquittal of respondent no.2- original accused for the offence
punishable under Section 138 of the Negotiable Instruments Act.
3.0. Learned advocate for the applicant- original complainant
has invited attention of this Court to the reasons recorded by the
learned trial Court while recording order of acquittal. He has
R/CR.MA/4225/2023 ORDER DATED: 13/06/2023
invited attention of this Court to the cross examination of the
complainant and has also relied upon the further statement of
the accused recorded under Section 313 of the Code of Criminal
Procedure. By referring to the aforesaid evidence, he has
submitted that the learned Magistrate has committed gross error
in doubting the financial capacity of the complainant in
absence of production of income tax return. He has further
submitted that it has come on record that his annual income is
around Rs.3 lakhs. The attention of this Court is also invited to
the fact that only defence which was raised by the accused in the
form of 313 statement is about misused of cheque. However, no
defence has been raised by the respondent-accused by giving
reply to the statutory notice under Section 138 of the Negotiable
Instruments Act. Mr. Desai has also relied upon the decision of
the Hon'ble Supreme Court in the case of Tedhi Singh vs.
Narayan Dass Mahant reported in (2022) 6 SCC 735.
4.0. Having heard the learned advocates for the respective
parties and considering the submissions made by the learned
advocate for the applicant - original complainant and ratio laid
down by the Hon'ble Supreme Court in the case of Tedhi Singh
(supra), an arguable case is made out by the learned advocate
for the applicant- original complainant and application seeking
leave to appeal requires consideration. Hence, the present
application is allowed and Leave to Appeal, as prayed for, is
hereby granted.
Order in Appeal:
Appeal is admitted. Mr. Vizoda, learned advocate waives
R/CR.MA/4225/2023 ORDER DATED: 13/06/2023
service of admission on behalf of respondent no.2 and learned
Additional Public Prosecutor waives service admission on behalf
of respondent State. Registry is directed to call for the record and
proceedings of the case from the concerned Court.
(NISHA M. THAKORE,J)
KAUSHIK J. RATHOD
