Hitendrabhai Dinuprasad Joshi vs State Of Gujarat
2023 Latest Caselaw 2580 Guj

      R/CR.MA/271/2023                               ORDER DATED: 28/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/CRIMINAL MISC.APPLICATION NO. 271 of 2023
                   In R/CRIMINAL APPEAL NO. 37 of 2023

                                      With
                         R/CRIMINAL APPEAL NO. 37 of 2023
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                         HITENDRABHAI DINUPRASAD JOSHI
                                    Versus
                               STATE OF GUJARAT
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Appearance:
MR VAIBHAV N SHETH(5337) for the Applicant(s) No. 1
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 : 28/03/2023

                                   ORAL ORDER

ORDER IN R/CRIMINAL MISC. APPLICATION NO. 271 of 2023

1. Heard Mr. Vaibhav Sheth, 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 by the

applicant-original complainant under Section 378(4) of Cr.P.C., 1973,

challenging the judgment and order of acquittal dated 16.09.2022

passed by the learned 3rd Additional Judicial Magistrate First Class,

Modasa, Aravalli in Criminal Case No.47 of 2016. By the said judgment

R/CR.MA/271/2023 ORDER DATED: 28/03/2023

and order, the learned Magistrate has recorded the order of acquittal

of the respondent No.2 for the offence punishable under Section 138

of the N.I. Act.

4. Mr. Vaibhav Sheth, learned advocate on record for the

applicant-original complainant, has submitted that one of the ground

for not entertaining the complaint is that the trial court has

disbelieved the case of the complainant, considering the defence

raised by the accused that the applicant has failed to prove his source

of income in advancing the amount and in absence of any proof in

writing in the form of promissory note or otherwise, the learned

Magistrate has erroneously arrived at conclusion that no legally

recoverable debt was existing on the date of presentation of the

disputed cheque. He has placed on record the paper book and has

invited attention of this Court to the averments of the accused in the

reply given to the statutory notice. He has relied upon the decisions of

the Hon'ble Apex Court in the case of Rohitbhai Jivanlal Patel vs.

State of Gujarat and Another reported in (2019) 18 SCC 106 and in

the case of Tedhi Singh vs. Naryan Dass Mahant reported in (2022) 6

SCC 735 and has submitted that merely in cross-examination, the

complainant has denied the fact about source of income, the

presumption raised in favour of complainant should not have been

treated as rebutted. The learned Magistrate ought not to have

R/CR.MA/271/2023 ORDER DATED: 28/03/2023

proceeded to record the order of acquittal. He therefore, urged this

Court to grant leave to appeal.

5. Considering the submissions made by learned advocate for the

applicant-original complainant, prima facie, this Court finds that the

matter requires consideration in absence of any denial of signature on

the disputed cheque. Statutory presumption available under Sections

118 and 139 of the Act, was required to be extended in favour of the

complainant, more particularly, as regards existence of legally

enforceable debt. The basic ingredients of Section 138 of the N.I. Act,

are apparent on the face of the record as reflected from the

documents placed on record. Hence, present application for leave to

appeal is granted. Rule is made absolute.

ORDER IN R/CRIMINAL APPEAL NO. 37 of 2023

1. ADMIT. Learned APP waives service of notice of admission for

and on behalf of respondent-State.

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

accused.

3. Respondent-accused be served through concerned police

station.

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

(NISHA M. THAKORE,J) SUYASH SRIVASTAVA