Dashratbhai Harchandji Mali vs State Of Gujarat
2023 Latest Caselaw 2222 Guj

   R/CR.MA/21735/2022                                     ORDER DATED: 13/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 21735 of 2022
                                With
                 R/CRIMINAL APPEAL NO. 2359 of 2022

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                        DASHRATBHAI HARCHANDJI MALI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR N S PARMAR(6785) for the Applicant(s) No. 1
VISHAL S AWTANI(7913) for the Applicant(s) No. 1
MR PV PATADIYA(5924) 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

ORDER IN CRIMINAL MISC.APPLICATION NO. 21735 of 2022

1. RULE. Learned Additional Public Prosecutor waives service of

notice of rule on behalf of the respondent-state.

2. This application is filed for grant of Special Leave to Appeal

against the judgment and order dated 28-05-2018 passed by the

Additional Chief Judicial Magistrate, Deesa in Criminal Case

No.286 of 2017, wherein the respondent-accused has been

R/CR.MA/21735/2022 ORDER DATED: 13/03/2023

acquitted for the offence under Section-138 of the Negotiable

Instruments Act.

3. Learned Advocate for the applicant has taken this Court to the

impugned judgment and pointed out that though the entire trial

has proceeded on the basis of presumption has been successfully

rebutted, but there is no discussion with regard to the application

of such judgment discussed by the Magistrate to the facts of the

case.

4. It is submitted that merely because there is no reflection of hand

loan given out of friendly relationship between the applicant and

the accused in the Income Tax return, is not sufficient to rebut the

presumption, which otherwise is available to the applicant under

the provision of Section-139 of the Negotiable Instruments Act.

5. In view of the aforesaid, sufficient ground is made out for grant of

Special Leave to Appeal.

6. In view of the aforesaid, Special Leave to Appeal is granted.

Accordingly, present Criminal Misc. Application stands allowed.

Rule is made absolute accordingly.

R/CR.MA/21735/2022 ORDER DATED: 13/03/2023

ORDER IN CRIMINAL APPEAL NO. 2359 of 2022

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