Gujarat High Court
Hemaben Dhanabhai Mori vs Jaydeepsinh Ratansinh Rathod on 2 March, 2023
Bench: A.Y. Kogje
R/CR.MA/1022/2023 ORDER DATED: 02/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1022 of 2023
In R/CRIMINAL APPEAL NO. 118 of 2023
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HEMABEN DHANABHAI MORI
Versus
JAYDEEPSINH RATANSINH RATHOD
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Appearance:
MR PREMAL S RACHH(3297) for the Applicant(s) No. 1
MS. ASMITA PATEL, APP for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 02/03/2023
ORAL ORDER
ORDER IN
CRIMINAL MISC.APPLICATION NO. 1022 of 2023
In R/CRIMINAL APPEAL NO. 118 of 2023
1. Though served, no-one has appeared on behalf of the
respondent.
2. This application is filed to grant the Special Leave to Appeal
against the order of acquittal recorded vide judgment and
order dated 01-09-2022 passed in Criminal Case No.7691 of
2018 by the 9th Additional Chief Judicial Magistrate,
R/CR.MA/1022/2023 ORDER DATED: 02/03/2023
Jamnagar.
3. The case was under the provisions of Section-138 of
Negotiable Instruments Act.
4. Learned Advocate for the applicant has submitted that
acquittal was recorded on erroneous facts by holding that the
respondent has successfully rebutted the presumption.
However, said presumption was rebutted not by leading any
evidence by the respondent-accused. Not only that there was
no sufficient evidence on record, so as to enable the
respondent-accused to rebut such presumption.
5. Learned Advocate for the applicant has submitted that only
on the ground that cheque was issued to the complainant-
applicant towards the security of sale and purchase of car. It
is also pointed out that another version with regard to
issuance of cheque was also come in the defense, where it is
stated that the cheque in question was issued to one
Bhikhubhai Mulubhai towards security and therefore,
contradictory stand is taken by the respondent-accsued and
therefore, the Court could not have relied upon such fact to
R/CR.MA/1022/2023 ORDER DATED: 02/03/2023
conclude that the presumption is rebutted successfully.
6. The Court has taken into consideration submission made by
the learned Advocate for the applicant specifically by referring
to the relevant part of the judgment, wherein the stand taken
by the respondent-accused with regard to the cheque in
question, where it is stated that cheque in question was
issued as security to one Bhikhubhai Mulubhai. The
respondent has also taken the stand that cheque was handed
over to the husband of the complainant as security towards
sale and purchase of car. The evidence recorded of the
complainant does not refer to any transaction with regard to
the car, much less any question has been put in cross
examination in connection with any sale or purchase of car
towards which security cheque has been handed over to the
husband of the complainant. In absence of this, it appears
that erroneous conclusion is drawn that the presumption is
rebutted successfully by the respondent-accused on this very
ground.
7. In view of the aforesaid, Special Leave to Appeal is granted
R/CR.MA/1022/2023 ORDER DATED: 02/03/2023
against the impugned order. Accordingly, present Criminal
Misc. Application stands allowed. Rule is made absolute
accordingly.
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ORDER IN CRIMINAL APPEAL
1. The Appeal is admitted.
2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees Five
Thousand only) against the respondent- original accused.
(A.Y. KOGJE, J)
PARESH SOMPURA
