Gujarat High Court
Divyesh Harivadan Patel vs State Of Gujarat on 28 June, 2023
Bench: Nisha M. Thakore
R/CR.MA/698/2023 ORDER DATED: 28/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 698 of 2023
In R/CRIMINAL APPEAL NO. 93 of 2023
With
R/CRIMINAL APPEAL NO. 93 of 2023
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DIVYESH HARIVADAN PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR. H.N. SHAH FOR HL PATEL ADVOCATES(2034) for the Applicant(s) No. 1
MR CHETAN M PANDE(11886) for the Respondent(s) No. 2
MS. DIPSIKHA MISHRA FOR MR MATAFER R PANDE(3952) for the
Respondent(s) No. 2
MS. M.H. BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 28/06/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION NO. 698 of 2023
1. Rule returnable forthwith. Learned APP waives service of notice
of rule for and on behalf of respondent-State and learned advocate
Mr. Matafer R. Pande waives service of notice of rule for and on behalf
of respondent No.2.
2. Heard Mr. H. N. Shah, learned advocate for the applicant-original
complainant and learned advocate Ms. Dipsikha Mishra appearing for
Mr. Matafer R. Pande, learned advocate on record for the respondent
No.2-original accused.
R/CR.MA/698/2023 ORDER DATED: 28/06/2023
3. This application is filed seeking leave to appeal against the
judgment and order dated 01.09.2022 passed by learned 12th
Additional Sessions Judge, Surat in Criminal Appeal No.423 of 2022,
whereby, the learned Sessions Judge has quashed and set aside the
order of conviction dated 08.09.2021 passed by learned 3 rd Additional
Chief Judicial Magistrate, Surat in Criminal Case No.12643 of 2019. By
the said order, the learned Sessions Judge, has recorded acquittal of
respondent-accused for the offence punishable under Section 138 of
the N.I. Act.
4. Mr. H. N. Shah, learned advocate for the applicant-original
complainant, has invited attention of this court to the infirmities
noticed by the learned Sessions Judge while recording order of
acquittal. He has submitted that the learned Sessions Judge has
committed serious error in not taking into consideration the vital
document, which is the income tax return filed for the year 2016-17,
being brought on record by the complainant vide Exh.38. The entry in
the aforesaid income tax return of the complainant goes to suggest
that the transaction had taken place between the complainant and the
accused. In fact, the disputed amount was reflected in the column of
debt incurred by the accused. The aforesaid document clearly
establishes the fact that legally enforceable debt of the disputed
cheque was with the complainant "Bhagvati International". He has
R/CR.MA/698/2023 ORDER DATED: 28/06/2023
further submitted that the accused had not entered into the witness
box neither any specific defence has been raised. It was for the
accused to establish the fact with regard to the dispute raised in the
final arguments as regards the holding of the account and the
signature on the disputed cheque. He therefore, urged this Court to
grant present application seeking leave to appeal.
5. Considering the submissions made by learned advocate
appearing for the applicant-original complainant, the Court is of the
view that present application seeking leave to appeal requires
consideration and the same is allowed. Rule is made absolute to the
aforesaid extent.
ORDER IN R/CRIMINAL APPEAL NO. 93 of 2023
1. Admit. Learned APP waives service of notice of admission for
and on behalf of respondent-State and learned advocate Mr. Matafer
R. Pande waives service of notice of admission for and on behalf of
respondent No.2.
2. Registry is hereby directed to call for Record & Proceedings
forthwith.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
