Gujarat High Court
Imam Mohd. Rafik Ibrahimbhai Thro ... vs State Of Gujarat on 13 March, 2023
Bench: A.Y. Kogje
R/CR.MA/5736/2021 ORDER DATED: 13/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5736 of 2021
With
R/CRIMINAL APPEAL NO. 593 of 2023
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IMAM MOHD. RAFIK IBRAHIMBHAI THRO POAH IMAM IBRAHIMBHAI HAJI
HAKIMBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR G R MANAV(6064) for the Applicant(s) No. 1
MR V B SHUKLA(8955) for the Respondent(s) No. 2
MS. ASMITA PATEL, APP,for the Respondent(s) No. 1
RAHULKUMAR V MAKWANA(8962) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 13/03/2023
ORAL ORDER
[1] Rule. Learned Additional Public Prosecutor waives service of rule
on behalf of respondent No.1-State.
[2] The present application is filed by the applicant for Special Leave
to Appeal against the judgment and order dated 30.01.2021 in
Criminal Case No.346 of 2017 by the Additional Chief Judicial
Magistrate Court, Idar. By the aforesaid judgment and order, the
respondent-accused came to be acquitted of the offence under Section
138 of the Negotiable Instrument Act.
[3] Learned advocate for the applicant submitted that the applicant
had given a hand loan on account of the friendly relation between the
applicant and the respondent-accused, who is friend of his father for
an amount of Rs.10 Lakhs and towards which in discharge of the loan,
the subject cheque was issued.
R/CR.MA/5736/2021 ORDER DATED: 13/03/2023
[4] Learned advocate for the applicant submitted that the trial Court
has committed an error in holding that the presumption was
successfully rebutted by the respondent-accused though there was no
evidence produced by the respondent-accused for rebutting of such
presumption. It is submitted that the respondent-accused has not taken
any definite stand from the beginning that is from the date on which
he had replied to the statutory demand notice to support the rebuttal
of presumption and therefore, the stand of the respondent-accused is
not consistent.
[5] Considering the aforesaid and particularly the fact that not only
the cheuqe and the signature are not disputed, but there are two
witnesses examined at Exh.28 and 31 who have supported the case of
the applicant to substantiate the issue of issuance of cheque in
discharge of the loan. The Court has taken into consideration the order
passed by this Court on 26.08.2022 and today also when the matter is
called out, learned advocate Mr.V.B.Malik for the respondent-accused
is not present.
[6] In view of the aforesaid, Special Leave to Appeal is granted.
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)
R/CR.MA/5736/2021 ORDER DATED: 13/03/2023
SIDDHARTH
