Harshadbhai Jamnadas Gadhiya vs State Of Gujarat
2023 Latest Caselaw 8088 Guj

                                                                                  NEUTRAL CITATION




     R/CR.MA/19752/2023                              ORDER DATED: 06/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 19752
                          of 2023

                    In R/CRIMINAL APPEAL NO. 2510 of 2023

                                    With
                      R/CRIMINAL APPEAL NO. 2510 of 2023
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                          HARSHADBHAI JAMNADAS GADHIYA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR RATHIN P RAVAL(5013) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS DIVYANGNA P. JHALA, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                 Date : 06/11/2023

                                  ORAL ORDER

ORDER IN CRIMINAL MISC. APPLICATION NO. 19752 OF

1. This is an application preferred by the applicant-original

complainant under Section 378 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 Principal Senior Civil Court & Additional Chief

Judicial Magistrate, Savrkundla in Criminal Case No.649 of

2022 dated 31.8.2023.

NEUTRAL CITATION

R/CR.MA/19752/2023 ORDER DATED: 06/11/2023

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2. Heard learned advocates appearing for respective parties

and perused the impugned judgment and order of the trial

Court.

3. Learned advocate Mr. Raval for the applicant submits

that so far as the signature in cheque and issuance of cheque

is not disputed, there was no any probable defence which was

led before the Trial Court merely the false case was pleaded by

the respondent-accused which was accepted without any

cogent evidence. Learned advocate for the applicant further

submits that the Trial Court comes to the conclusion that the

complainant fails to establish the case under Section 138 of

the Negotiable Instruments Act on the ground that before the

disputed transaction, the police complaint was filed by the

respondent-accused against the present applicant with regard

to non-payment of the sale consideration. The Trial Court

observed in the impugned judgment that as the complaint

which was filed before the police station was in the month of

August 2021, the story put up by the present applicant that he

had lent the money in the month of October 2021, cannot be

believed. Learned advocate for the applicant further submits

NEUTRAL CITATION

R/CR.MA/19752/2023 ORDER DATED: 06/11/2023

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that though the presumption which is in favour of the present

applicant under Sections 118 and 139 was not rebutted, the

defence was accepted by the Trial Court and committed error.

Therefore, the learned advocate prays to allow this application

to prefer an appeal.

4. In view of the above submissions, this Court deems fit to

allow this application for leave to prefer an appeal. Hence, this

application is allowed.

ORDER IN APPEAL No.2510 OF 2023

The appeal is admitted. Learned APP Ms. Divyangna P.

Jhala waives service of notice of admission on behalf of

respondent State.

Issue Bailable Warrant in the sum of Rs.5,000/- (Rupees

Five Thousand Only) against the respondent-original accused.

In the meantime, R&P be called for. Registry is directed

to list this matter as per seriatim.

(M. K. THAKKER,J) Bharat