Rameshbhai Ambarambhai Vasoya ... vs State Of Gujarat
2023 Latest Caselaw 8003 Guj

                                                                              NEUTRAL CITATION




   R/CR.MA/10457/2023                            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. 10457
                          of 2023

                  In R/CRIMINAL APPEAL NO. 1380 of 2023

                                  With
                    R/CRIMINAL APPEAL NO. 1380 of 2023
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              RAMESHBHAI AMBARAMBHAI VASOYA (PATEL)
                              Versus
                        STATE OF GUJARAT
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Appearance:
MR S D MOGHARIYA(11273) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS DIVYNAGNA JHALA, ADDL.PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                             Date : 01/11/2023

                              ORAL ORDER

ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 10457 of 2023

1. This is an application preferred 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 3 rd Additional Chief

Judicial Magistrate, Surendranagar dated 06.04.2023 in

Criminal Case No.553 of 2017.

NEUTRAL CITATION

R/CR.MA/10457/2023 ORDER DATED: 01/11/2023

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2. Learned advocate Mr.Savankumar Moghariya for the

applicant submits that though issuance of the cheque

and signature was not disputed by the respondent-

accused and there was no probable defence placed on

the record either during the cross examination or by

leading the independent evidence. Learned advocate

Mr.Moghariya further submits that though statutory

presumption, which is in favour of the respondent-

accused was not rebutted by him by leading the evidence

which may be in the nature of preponderance of the

probabilities, learned trial Court had acquitted the

respondent-accused. Learned advocate for the applicant

Mr.Moghariya draws attention of this Court with regard to

the reasonings given by the learned trial Court, wherein

the judgment and order of the acquittal was passed on

the ground that the complainant had availed the loan

facility and complainant fails to establish that on which

date, in whose presence and at which place the money

was advanced. Learned advocate Mr.Moghariya further

submits that though the burden is on the accused to

rebut statutory presumption by leading the probable

defence, which may be accepted by the prudent man. In

NEUTRAL CITATION

R/CR.MA/10457/2023 ORDER DATED: 01/11/2023

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the present case, though accused fails to rebut the

presumption of the legally enforceable debt, impugned

judgment and order was passed.

3. In view of the above submissions, present application

seeking leave to prefer an appeal is allowed.

ORDER IN R/CRIMINAL APPEAL NO. 1380 of 2023

1. The appeal is admitted. Learned APP Ms.Jhala waives service of notice of admission on behalf of respondent- State.

2. Issue Bailable Warrant in the sum of Rs.5,000/- (Rupees Five Thousand Only) against the respondent-original accused.

(M. K. THAKKER,J) M.M.MIRZA