Gujarat High Court
Pareshbhai Jayantibhai Patel vs Patel Rohitbhai Dhirajbhai on 24 March, 2023
Bench: Nisha M. Thakore
R/CR.MA/5141/2023 ORDER DATED: 24/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5141 of 2023
In R/CRIMINAL APPEAL NO. 683 of 2023
With
R/CRIMINAL APPEAL NO. 683 of 2023
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PARESHBHAI JAYANTIBHAI PATEL
Versus
PATEL ROHITBHAI DHIRAJBHAI
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Appearance:
KUMAR H TRIVEDI(9364) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR BHARGAV PANDYA ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 24/03/2023
ORAL ORDER
1. Heard Mr. Kumar H. Trivedi, learned advocate for the
applicant.
2. Rule returnable forthwith. Learned APP waives service of
Rule on behalf of the respondent No.2 State.
3. This is an application seeking leave to appeal filed by the
applicant - original complainant challenging the judgment and
order of acquittal dated 16.02.2023 passed by the learned Second
Additional Judicial Magistrate First Class, Himmatnagar, in
Criminal Case No.2369 of 2020 dated 16.02.2023. By the said
judgment and order, learned Magistrate has recorded acquittal of
the respondent No.1 - original accused for offence punishable
under Section 138 of the Negotiable Instruments Act.
R/CR.MA/5141/2023 ORDER DATED: 24/03/2023
4. Mr. Trivedi, learned advocate for the applicant has invited
attention of this Court to the reasons recorded by the trial Court
while recording the order of the acquittal. At the outset, he has
submitted that the learned Magistrate has not entertained the
complaint mainly on the ground that the return memo produced by
the complainant vide Exhibit 13 is a computerized copy, which
does not bear the seal of the bank neither has been signed by the
Manager of the concerned bank and has not been supported by
the Certificate under Section 65B of the Evidence Act. He has
further drawn attention of this Court to Exhibit 18, which is original
promissory note produced by the complainant executed between
the complainant and the accused and has submitted that the
aforesaid document clearly establishes the existence of legally
enforceable debts existing as on date of presentation of cheque. In
such circumstances, sufficient evidence has come on record to
hold the respondent No.1 liable for the offence punishable under
Section 138 of the Negotiable Instruments Act. He, therefore,
urged this Court to grant leave to appeal.
5. Considering the averments made in the present leave to
appeal, the grounds raised in the memo of appeal and
submissions made by learned advocate for applicant, prima facie, I
am of the view that the accused had failed to respond to the legal
notice raising demand of the amount. Though summons were duly
served upon the accused persons, the accused have failed to
make payment. On the other hand, the learned Magistrate has
recorded that accused has not disputed signature on the disputed
cheque. Even document in the nature of promissory note executed
between parties has stood established at Exhibit 18. In such
circumstances, the existence of "legally enforceable debts" against
R/CR.MA/5141/2023 ORDER DATED: 24/03/2023
the accused has come on record. Hence, present leave to appeal
requires consideration and is hereby allowed. Rule is made
absolute.
CRIMINAL APPEAL NO. 683 of 2023:
ADMIT. Learned APP waives service of notice of admission
on behalf of the respondent No.2 State.
Issue bailable warrant of in the sum of Rs. 10,000/-
against private respondent.
R & P to be called for.
(NISHA M. THAKORE,J)
Y.N. VYAS
