Patel Vinaykumar Manibhai vs State Of Gujarat
2023 Latest Caselaw 2446 Guj

     R/CR.MA/17522/2021                            ORDER DATED: 21/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 17522 of 2021

                                    With
                      R/CRIMINAL APPEAL NO. 1415 of 2021
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                          PATEL VINAYKUMAR MANIBHAI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
KAUSHAL S JANI(7627) for the Applicant(s) No. 1
MITTAL N PATEL(7614) for the Respondent(s) No. 2
MR BHARGAV PANDYA, 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 CRIMINAL APPLICATION NO. 17522 OF 2021

1. Heard Mr. Kaushal Jani, learned advocate on record for the applicant - original complainant, Ms. Mittal Patel, learned advocate on record for respondent No.2- original accused and learned Additional Public Prosecutor Mr. Bhargav Pandya appearing on behalf of respondent-State.

2. Rule. Learned advocates for the respective parties waives service of notice of rule on behalf of their respective respondents.

3. This is an application seeking leave to appeal filed under Section 378(4) of Cr.P.C. seeking permission of this Court to challenge the judgment and order dated 17.07.2021 passed by

R/CR.MA/17522/2021 ORDER DATED: 21/03/2023

the learned 3rd Additional Chief Judicial Magistrate in Criminal Case No. 3236 of 2018.

4. Mr. Kaushal Jani, learned advocate on record for the applicant - original complainant has invited attention of this Court to the reasons assigned by the trial Court while recording the order of acquittal. He has submitted that in absence of any dispute with regard to the signature of the accused on the disputed cheque, the statutory presumption envisage under Section 139 of the N.I. Act had arose in favour of the complainant with regard to existence of legally enforcable debt on the date of presentation of cheque. Thus, it was for the accused to disprove the said legal presumption by producing cogent evidence on record. He has submitted that the learned trial Court on irrelevant consideration of noticing discrepancy in the amount borrowed and the amount reflected in the disputed cheque, has erred in disbelieving the case of the complainant and has erroneously recorded order of acquittal. He further submitted that as against borrowed amount of Rs. 5,75,000/- given as friendly loan for a period of one year, with interest as per the prevailing bank rates, had culminated into the outstanding amount of Rs. 6,03,625/- as reflected in the disputed cheque, which was otherwise entered into by the accused himself. He further submitted that in absence of any dispute with regard to the hand-writing of the content of the cheque and the signature of the accused, unnecessary burden was shifted upon the complainant to justify the same.

5. Ms. Mittal Patel, learned advocate on record for

R/CR.MA/17522/2021 ORDER DATED: 21/03/2023

respondent No.2 has supported the findings and reasons recorded by the trial Court. She has relied upon the decision of the High Court of Bombay in the case of Ramkrishan Urban Co- operative Credit Vs. Shri Rajendra Bhagchand Warma (order dated 16.02.2010) passed in Criminal Application No. 898 of 2009 and has submitted that noticing the discrepancy in the amount, the trial Court has rightly accepted the probable defence raised by the accused and has called upon the complainant to prove his case beyond reasonable doubt. She further submitted that in absence of any cogent material being brought on record and in absence of any explanation being offered, the trial Court has proceeded to record the order of acquittal. She has therefore objected to grant the present leave to appeal.

6. Considering the submissions made by the learned advocates for the respective parties, and having perused the impugned judgment and order and the grounds raised in the memo of appeal, prima-facie this Court is of the view that the explanation offered by the complainant as regards the interest being added on the borrowed amount against the loan amount advance for a period of one year, is required to be closely examined. The present application seeking leave to appeal requires consideration. Hence, allowed. Rule is made absolute.

ORDER IN CRIMINAL APPEAL NO. 1415 of 2021

1. The Appeal is Admitted. Learned advocates waive service of notice of admission on behalf of their respective

R/CR.MA/17522/2021 ORDER DATED: 21/03/2023

respondents.

2. Registry is hereby directed to call for Record and Proceedings.

(NISHA M. THAKORE,J) SALIM/