Ankit Ashokkumar Bothra vs Rohit Hukumchand Jain
2023 Latest Caselaw 7995 Guj

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     R/CR.MA/14037/2020                            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. 14037
                          of 2020

                                    With
                      R/CRIMINAL APPEAL NO. 2454 of 2023
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                          ANKIT ASHOKKUMAR BOTHRA
                                    Versus
                           ROHIT HUKUMCHAND JAIN
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Appearance:
MR. J.K.BAROT, ADVOCATE FOR MR HARDIK A DAVE(3764) for the
Applicant(s) No. 1
MR HARSH R JOSHI(12752) for the Respondent(s) No. 1
MS. DIVYAGNA JHALA, APP for the Respondent(s) No. 2
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                               Date : 01/11/2023

                                ORAL ORDER

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, passed by the learned 7th Additional Senior Civil Judge and Chief Judicial Magistrate Court, Surat dated 14 th February, 2020 in Criminal Case No. 1801 of 2017.

2. Heard, learned advocates appearing for respective parties and perused the impugned judgment and order of the trial Court.

3 Mr.J.K.Barot, learned advocate appearing for Mr. Hardik Dave, learned advocate for the applicant submits that though

NEUTRAL CITATION

R/CR.MA/14037/2020 ORDER DATED: 01/11/2023

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the issuance of cheque and the signature was not disputed by the respondent-accused and mere contention with regard to the misusing of the cheque was accepted by the learned trial Court while acquitting to the respondent-accused. It is further contended by Mr.Barot, learned advocate for the applicant that though it is admitted by the respondent-accused that he had received the demand notice but, not paid the amount in stipulated period only the ground which was taken by the respondent-accused that debt was not legally enforceable debt was accepted without pleading any evidence which may be in the nature of preponderance of the probability. Learned advocate for the applicant further draws the attention of this Court with regard to the reasoning assigned by the learned trial Court while acquitting the respondent-accused with regard to non- production of GST notification which is in the submission of the learned advocate is immaterial where, the presumption was not rebutted by the respondent-accused.

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. Appeal is admitted. Learned APP waives service of notice of admission on behalf of respondent No.2 - State.

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R/CR.MA/14037/2020 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.

4. List this matter in seria tim.

(M. K. THAKKER,J) BEENA SHAH