Prakashbhai Vitthalbhai Patel vs State Of Gujarat
2023 Latest Caselaw 4883 Guj

     R/CR.MA/5810/2023                            ORDER DATED: 23/06/2023




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
       R/CRIMINAL MISC.APPLICATION NO. 5810 of 2023
           In R/CRIMINAL APPEAL NO. 826 of 2023
                           With
             R/CRIMINAL APPEAL NO. 826 of 2023
                           With
CRIMINAL MISC.APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1
                          of 2023
            In R/CRIMINAL APPEAL NO. 826 of 2023
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                         PRAKASHBHAI VITTHALBHAI PATEL
                                    Versus
                               STATE OF GUJARAT
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Appearance:
MR VAIBHAV N SHETH(5337) for the Applicant(s) No. 1
 for the Respondent(s) No. 2
MR DEEP B KOTHARI(12220) for the Respondent(s) No. 2
Mr. L B Dabhi, Addl. PUBLIC PROSECUTOR for the Respondent(s) No.
1
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
                  Date : 23/06/2023

                                  ORAL ORDER

Order in Criminal Misc. Application No.5810 of 2023

1. Present application under Section 378(4) of the Code of Criminal Procedure, 1973 has been preferred by the applicant for Leave to Appeal against the impugned judgment and order of acquittal dated 30.01.2023 passed by the learned Additional Chief Judicial Magistrate, Bayad in Criminal Case No.379 of 2020 acquitting the opponent no.2 herein - original accused.

2. This Court while issuing the notice vide order dated 11.4.2023 has considered the following submissions made by Mr. Vaibhaiv Sheth, learned advocate for the applicant:

R/CR.MA/5810/2023 ORDER DATED: 23/06/2023

"3. Mr. Vaibhav N. Sheth, learned advocate on record for the applicant-original complainant, has placed on record the paper book. He has invited attention of this Court to the evidence of witness namely Rajeshbhai Arvindbhai Makani, who has been examined on behalf of the complainant vide Exh.38. He has submitted that said witness is signatory to the aforesaid document as witness. He has made submission that the original document was handed over to the lawyer, representing the case of the complainant, however, since the said document was not sufficiently stamped, it was not placed on record by the said advocate. He has further submitted that trial court in absence of such document, has disbelieved the case put forward by the complainant. Additionally, the trial court has taken into consideration the defence, which has been brought on record in the cross-examination of the complainant that no actual transaction had ever taken place between the accused and the complainant and it was only through Bhupendrabhai, such transaction was claimed by the complainant. The trial court has taken notice of the fact that neither Bhupendrabhai nor Kantibhai has been examined as witness by the complainant.

3.1.Mr. Vaibhav N. Sheth, learned advocate on record for the applicant-original complainant, has further submitted that Bhupendrabhai, who is the brother of the present complainant, had also entered into the transaction and was looking after the investment done by the complainant in the scheme launched by the accused. He has further submitted that proceedings under Section 138 of the N.I. Act, are pending consideration in case of Bhupendrabhai. By relying upon the aforesaid document, learned advocate Mr. Vaibhav N. Sheth has submitted that in absence of any reply to the demand notice, no dispute being raised against the signature on the disputed cheque and in absence of any ground raised with regard to misuse of cheque, if the aforesaid document is accepted as evidence, the case of the complainant against the accused may be re-examined. He therefore, urged this Court to grant leave to appeal and to permit the said document to be read as an evidence at the final hearing of the appeal."

R/CR.MA/5810/2023 ORDER DATED: 23/06/2023

3. Heard learned advocates for the respective parties at length and perused the impugned judgment and order of acquittal and considering the same, it appears that the appeal deserves consideration. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted.

ORDER IN CRIMINAL APPEAL:

Admit. Learned Additional Public Prosecutor waives service of admission on behalf of respondent State and Mr.Kothari, learned advocate waives service of admission on behalf of the respondent no.2. Registry is directed to call for the Record and Proceedings of the case from the concerned Court.

Order in Criminal Misc. Application No.1 of 2023

To be heard with Criminal Appeal No.826 of 2023.

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