Navneetbhai Dineshbhai Sitapara vs State Of Gujarat
2023 Latest Caselaw 8061 Guj

                                                                                NEUTRAL CITATION




     R/CR.MA/19444/2023                            ORDER DATED: 03/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 19444
                           of 2023
                              In
              R/CRIMINAL APPEAL NO. 2484 of 2023
                            With
              R/CRIMINAL APPEAL NO. 2484 of 2023
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                      NAVNEETBHAI DINESHBHAI SITAPARA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR JIGAR B OZA(11654) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS. DIVYAGNA JHALA, APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                              Date : 03/11/2023

                               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, passed by the learned Additional Chief Judicial Magistrate, Viramgam, Ahmedabad dated 20.9.2023 in Criminal Case No. 514 of 2022.

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

3 Learned advocate Mr. Jigar B. Oza for the applicant

NEUTRAL CITATION

R/CR.MA/19444/2023 ORDER DATED: 03/11/2023

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submits that issuance of the cheque as well as the signature were not disputed by the respondent-accused. Learned advocate Mr. Oza submits that though the presumption, which is in favour of the complainant under Section 118 and 139 of the Negotiable Instrument Act, was not rebutted by the respondent-accused. Learned trial Court had acquitted the respondent-accused on the ground that the complainant failed to establish that on which date and in whose presence and in which place the amount was lent to the respondent-accused. Learned advocate Oza further submits that it is on the respondent-accused to rebut the presumption by leading the evidence which may be in the nature of preponderance of the probability. However, instead of considering the above settled law, the learned Court had acquitted the respondent-accused on the ground that the complainant fails to prove the legally enforceable debt.

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.1 - State.

2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees

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R/CR.MA/19444/2023 ORDER DATED: 03/11/2023

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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