Jikesh Radheshyambhai Thakkar vs State Of Gujarat
2023 Latest Caselaw 2286 Guj

   R/CR.MA/4767/2023                                     ORDER DATED: 15/03/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 4767 of 2023

                  In R/CRIMINAL APPEAL NO. 578 of 2023
                                  With
                    R/CRIMINAL APPEAL NO. 578 of 2023
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                       JIKESH RADHESHYAMBHAI THAKKAR
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MS.DILBUR CONTRACTOR(6388) for the Applicant(s) No. 1
MS. JIRGA JHAVERI, APP,for the Respondent(s) No. 1
for the Respondent(s) No. 2,3,4,5
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 15/03/2023
                                ORAL ORDER

1. RULE. Learned Additional Public Prosecutor waives service of

notice of rule on behalf of the respondent-state.

2. This application is filed by the applicant for Special Leave to

Appeal against the judgment and order dated 04.02.2023 by the

Additional Chief Metropolitan Magistrate, Negotiable Instrument

Court No.34, Ahmedabad in Criminal Case No.643 of 2016. By the

impugned judgment and order, the respondent-accused is acquitted

of the offence under Section 138 of the Negotiable Instrument Act.

3. At the outset, it appears that the Trial Court has proceeded on a

wrong premise when it concludes that the applicant is required to

establish beyond reasonable doubt, the existence of legally

R/CR.MA/4767/2023 ORDER DATED: 15/03/2023

enforceable debt and thereby completely giving a go-bye to the

provisions of Section 139 of the N.I. Act. It appears that there was

nothing on record produced by the respondent-accused to

successfully rebut the presumption of existing legally enforceable

debt or other dues against him towards the applicant and only

upon evidence coming on record, the burden would shift upon the

complainant to establish the existence of legally enforceable debt

beyond reasonable doubt.

4. In view of the aforesaid, case is made out for grant of Special

Leave to Appeal to prefer an appeal against the impugned

judgment and 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) SIDDHARTH