Gujarat High Court
M/S. Mohit Impex Through Mohit ... vs Naynaben Shantilal Patel on 16 March, 2023
Bench: A.Y. Kogje
R/CR.MA/5495/2022 ORDER DATED: 16/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5495 of 2022
In R/CRIMINAL APPEAL NO. 597 of 2022
With
R/CRIMINAL APPEAL NO. 597 of 2022
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M/S. MOHIT IMPEX THROUGH MOHIT TEJRAJ JAIN
Versus
NAYNABEN SHANTILAL PATEL
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Appearance:
MR JINESH H KAPADIA(5601) for the Applicant(s) No. 1
MS SM AHUJA(118) for the Respondent(s) No. 1
MS. ASMITA PATEL, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 16/03/2023
ORAL ORDER
ORDER IN
R/CRIMINAL MISC.APPLICATION NO. 5495 of 2022
In R/CRIMINAL APPEAL NO. 597 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 of acquittal dated 01-04-2021
passed by the 2nd Additional Chief Judicial Magistrate, Gandhidham
in Criminal Case No.3497 of 2018, wherein the respondent-accused
R/CR.MA/5495/2022 ORDER DATED: 16/03/2023
has been acquitted for the offence under Section-138 of the
Negotiable Instruments Act.
3. Notice is served upon the respondent-accused and at one stage,
learned Advocate had appeared for the respondent-accused and had
sought time. However, today, when the matter is called out,
learned Advocate for the respondent-accused is absent. It is
submitted that as the issue is of grant of Special Leave to Appeal,
as the matter between the Court and applicant (complainant), the
same may be considered even in absence of the learned Advocate
for the respondent-accused.
4. Learned Advocate for the applicant has submitted that judgment
and order recording acquittal proceeds on completely erroneously
footing to the extend that the complainant himself has admitted to
the position that the cheques in question do not bear signature of
the respondent-accused and therefore, offence under Section-138 of
the Negotiable Instruments Act is not made out at all. In this
regard, learned Advocate for the applicant has submitted that the
applicant and respondent-accused are in the business of sale and
purchase of timber and were having continuous relationship as
such and towards pending dues for supply of timber, two cheques
in question were issued.
R/CR.MA/5495/2022 ORDER DATED: 16/03/2023
5. It is submitted that error committed in holding that the
complainant has admitted that cheques in question do not bear
signature of the respondent-accused, is not only erroneous on facts,
but also goes to the root of the matter.
6. Learned Advocate for the applicant has therefore drawn attention
of this Court to such categoric finding given in Para-6(k)(f),
wherein the trail Court has held that "Hence, in absence of any
such proof and most important is that accused has not issued any
cheques because cheques in dispute does not bears the signature of
the accused and the same is admitted by the complainant, hence,
the accused cannot be held guilty of offence committed."
7. Similar finding is also given in Para-6, which reflects the same
thing, as if, the respondent-accused has not signed cheques in
question.
8. At this stage, learned Advocate for the applicant has drawn
attention of this Court to cross examination vide Exh-6 of PW-1 of
the complainant and submitted that nowhere through out cross
examination, it is recorded that the complainant has admitted that
cheques in question do not bear signature of the respondent-
accused. In fact, in cross examination, it has been emphatically
stated that signature on the cheques in question is by the
R/CR.MA/5495/2022 ORDER DATED: 16/03/2023
respondent-accused.
9. In view of the aforesaid, sufficient ground is made out for grant of
Special Leave to Appeal.
10. 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 NO. 597 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
