Vaktabhai Kodarbhai Patel vs Patel Amrutbhai Prabhubhai
2023 Latest Caselaw 2441 Guj

      R/CR.MA/5076/2023                               ORDER DATED: 21/03/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 5076 of 2023

                      In R/CRIMINAL APPEAL NO. 663 of 2023

                                       With
                          R/CRIMINAL APPEAL NO. 663 of 2023
==========================================================
                             VAKTABHAI KODARBHAI PATEL
                                       Versus
                            PATEL AMRUTBHAI PRABHUBHAI
==========================================================
Appearance:
KUMAR H TRIVEDI(9364) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2
MR. BHARGAV PANDYA, APP for the Respondent(s) No. 3
==========================================================

     CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                  Date : 21/03/2023

                                    ORAL ORDER

ORDER IN R/CRIMINAL MISC.APPLICATION NO. 5076 of 2023

1. Heard Mr. Kumar H. Trivedi, learned advocate on record for the

applicant-original complainant.

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

of rule for and on behalf of respondent-State.

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

378(4) of Criminal Procedure Code, 1973, seeking permission of this

Court to challenge the judgment and order of acquittal dated

14.02.2023 passed by learned Judicial Magistrate First Class, Vadali in

R/CR.MA/5076/2023 ORDER DATED: 21/03/2023

Criminal Case No.1389 of 2021. By the said judgment and order,

learned Judicial Magistrate First Class, Vadali, has recorded the order

of acquittal of respondent Nos.1 and 2 for the offence punishable

under Section 138 of the N.I. Act.

4. Learned advocate Mr. Kumar H. Trivedi appearing for the

applicant has invited attention of this Court to the list of the

documents, brought on record, which includes village form No.8(A) as

well as village form No.7(12). He has submitted that in all four

different parcels of agricultural lands were jointly owned by the

complainant and his two sons. By relying upon the aforesaid

document, he has submitted that trial court failed to appreciate the

aforesaid evidence brought on record by the complainant and on

irrelevant consideration, has accepted the defence raised by the

accused. He has further submitted that the accused has borrowed the

goods for his wholesale business and against the same, he had issued

cheques in the name of his firm. He therefore, submitted that in

absence of any denial of his signature on the disputed cheque, the

presumption under Section 139 of N.I. Act with regard to existence of

legally enforceable debt existed in favour of the complainant. He

therefore, urged this Court to grant present leave to appeal.

5. Considering the submissions made by learned advocate

R/CR.MA/5076/2023 ORDER DATED: 21/03/2023

appearing for the applicant and having perused the grounds raised in

the memo of appeal, prima facie, present application for leave to

appeal requires consideration. Hence, present application seeking

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

extent.

ORDER IN R/CRIMINAL APPEAL NO. 663 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 private

respondent/s.

4. Private respondent/s 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