Ajaybhai C Patel Proprietor Of ... vs State Of Gujarat
2023 Latest Caselaw 2437 Guj

      R/CR.MA/4720/2023                               ORDER DATED: 21/03/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 4720 of 2023

                      In R/CRIMINAL APPEAL NO. 568 of 2023

                                       With
                          R/CRIMINAL APPEAL NO. 568 of 2023
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              AJAYBHAI C PATEL PROPRIETOR OF HARIOM FABRICS
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR JIGAR L PATEL(11596) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS. VRUNDA C. SHAH, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                  Date : 21/03/2023

                                    ORAL ORDER

ORDER IN R/CRIMINAL MISC.APPLICATION NO. 4720 of 2023

1. Leave to amend is granted.

2. Heard Mr. Jigar Patel, learned advocate on record for the

applicant-original complainant.

3. Rule returnable forthwith. Learned APP waives service of notice

of rule for and on behalf of respondent-State.

4. This is an application seeking leave to appeal filed under Section

378 (4) of Cr.P.C., 1973, seeking permission of this Court to challenge

R/CR.MA/4720/2023 ORDER DATED: 21/03/2023

the judgment and order of acquittal dated 13.12.2022 passed by

learned 11th Additional Sessions Judge, Surat in Criminal Appeal

No.194 of 2022. By the said judgment and order, the learned Sessions

Judge has quashed and set aside the judgment and order of

conviction dated 07.04.2022 passed by learned 9th Additional Chief

Judicial Magistrate, Surat in Criminal Case No. 8154 of 2019, thereby

recording order of acquittal of respondent No.2- original accused for

the offence punishable under Section 138 of the N.I. Act.

5. Learned advocate Mr.Jigar Patel appearing for the applicant has

invited attention of this Court to the reasons given by the trial court

while recording order of conviction. He has submitted that upon

appreciation of the evidence, the trial court has recorded finding that

the accused had not denied his signature on the disputed cheque.

Accordingly, the trial court has drawn the presumption under Section

139 of the N.I. Act, in favour of the complainant as regards existence

of legally enforceable debt on the date of presentation of cheque.

However, the learned Sessions Judge, upon re-appreciation of the

evidence noticing infirmities, which otherwise had no bearing on the

presumption already drawn in favour of the complainant, proceeded

to record the order of acquittal. He therefore, prays to grant leave to

appeal.

6. Considering the submissions made by learned advocate

R/CR.MA/4720/2023 ORDER DATED: 21/03/2023

appearing for the applicant and the grounds raised in the memo of

appeal, this Court is of the view that present application for leave to

appeal requires consideration. Hence, present application for leave to

appeal is allowed. Rule is made absolute to the aforesaid extent.

ORDER IN R/CRIMINAL APPEAL NO. 568 of 2023

1. Admit.

2. Learned APP waives service of notice of admission for and on

behalf of respondent-State.

3. Issue bailable warrant of Rs. 10,000/- against respondent-

accused.

4. Respondent-accused be served through concerned police

station.

5. Registry is hereby directed to call for Record & Proceedings

before the next date of hearing.

(NISHA M. THAKORE,J) SUYASH SRIVASTAVA