Shilaben Omprakashsinh vs State Of Gujarat
2023 Latest Caselaw 2220 Guj

      R/CR.MA/3833/2021                             ORDER DATED: 13/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 3833 of 2021
                                  With
                    R/CRIMINAL APPEAL NO. 594 of 2023
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                          SHILABEN OMPRAKASHSINH
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR VIRAL V DAVE(3846) for the Applicant(s) No. 1
MR YOGESH P DAVE(6566) for the Applicant(s) No. 1
MR.KARNA H DHOMSE(6684) for the Respondent(s) No. 2
MR. H.K. PATEL, APP, for the Respondent(s) No. 1
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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. Learned advocate Mr. Karna Dhomse waives service of rule on behalf of respondent No.2.

2. The present application is filed by the applicant for Special Leave to Appeal against the judgment and order dated 02.01.2021 in Criminal Case No.51551 of 2018 by the 19 th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat. By the aforesaid judgment and order, the respondent-accused has been acquitted of the offence under Section 138 of the Negotiable Instrument Act.

3. Learned advocate for the applicant submits that an error is committed in acquitting the respondent-accused on the basis of rebuttal by holding that the respondent-accused has successfully rebutted the presumption of legally enforceable debt of the applicant against the respondent-accused. However, in doing so, the Court has not taken into consideration the fact of cheque and the signature not being disputed and in fact, the transaction of giving a cash amount towards the loan is

R/CR.MA/3833/2021 ORDER DATED: 13/03/2023

supported by an independent witness, who is examined vide Exh.18.

4. It is submitted that as against this evidence which is sufficient to draw the presumption under Section 139 of the Negotiable Instrument Act, the Court has committed an error in holding that the presumption is successfully rebutted only on the basis of certain questions put to the complainant (applicant) in the cross examination with regard to maintaining of books of accounts and I.T. return and a registration under the Shops and Establishment Act.

5. In the opinion of the Court, merely by putting questions with regard to I.T. return and reflecting of the transaction in such I.T. return is not sufficient to rebut the presumption.

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) SIDDHARTH