Gujarat High Court
Vishnuba Rohitsinh Chauhan vs Bhavin Narayanbhai Chaudhary on 1 November, 2023
Bench: M. K. Thakker
NEUTRAL CITATION
R/CR.MA/19507/2023 ORDER DATED: 01/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 19507
of 2023
In R/CRIMINAL APPEAL NO. 2453 of 2023
With
R/CRIMINAL APPEAL NO. 2453 of 2023
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VISHNUBA ROHITSINH CHAUHAN
Versus
BHAVIN NARAYANBHAI CHAUDHARY
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Appearance:
MR S.R.KHSKANI, FOR MR RJ GOSWAMI(1102) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR BHARGAV PANDYA, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 01/11/2023
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION:
1. This is an application by the applicant - original
complainant under Section 378(4) of the Code of Criminal
Procedure, 1973, seeking leave of this Court to present an
appeal against the judgment and order of acquittal dated
27.07.2023 passed by the learned Additional Civil Judge and
Judicial Magistrate First Class, Vijapur in Criminal Case No.
1646 of 2022.
NEUTRAL CITATION
R/CR.MA/19507/2023 ORDER DATED: 01/11/2023
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2. Heard, learned advocates appearing for respective
parties and perused the impugned judgment and order of the
trial Court.
3. Mr. S.R. Keshkani, learned Advocate on behalf of Mr.
R.J. Goswami, learned advocate for the applicant - original
complainant submits that though the presumption, which is in
favour of the complainant under Sections-118 and 139 of the
N.I. Act, was not rebutted by the respondent - accused to
discharge or to rebut the presumption and has not produced
any evidence neither any circumstance was led before the
learned trial Court, the learned trial Court had passed the
judgment and order of the acquittal. Learned advocate further
submits that the complainant and the respondent - accused
are the next-door neighbours and the amount, which was
received by the complainant towards the insurance of the
husband, was landed to the respondent - accused. Learned
advocate further submits that though the respondent -
accused had not denied to the issuance of the cheque as well
as signature on the cheque, the learned trial Court had
NEUTRAL CITATION
R/CR.MA/19507/2023 ORDER DATED: 01/11/2023
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acquitted the respondent - accused on the sole ground that
the complainant failed to prove his case by showing his
financial capacity. Learned advocate further submits that
after rebutting the presumption provided under the N.I. Act,
only the burden would be shifted on the complainant,
however, the learned trial Court committed an error in
acquitting the respondent - accused despite the fact that with
regard to defence towards the issuance of cheque for the
security, no any evidence was led neither any circumstance
was proved.
4. Considering the avernments made in the application and
submissions made by the learned advocates appearing for the
respective parties, this Court finds that there is some
arguable case in favour of the applicant, therefore, leave, as
prayed for, is granted. This application is allowed.
ORDER IN CRIMINAL APPEAL:
1. The appeal is admitted. Mr. Bhargav Pandya, learned
APP waives service of notice of admission on behalf of
respondent no.2 - State.
NEUTRAL CITATION
R/CR.MA/19507/2023 ORDER DATED: 01/11/2023
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2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees
Five Thousand only) against the respondent - original
accused.
3. Record and proceedings be called for from the
concerned court. Registry is directed to list the Criminal
Appeal in seriatim.
(M. K. THAKKER,J)
A. B. VAGHELA
