Naranbhai Sarmanbhai Bhetariya vs State Of Gujarat
2023 Latest Caselaw 8280 Guj

Gujarat High Court

Naranbhai Sarmanbhai Bhetariya vs State Of Gujarat on 29 November, 2023

                                                                                 NEUTRAL CITATION




     R/CR.MA/14544/2022                            ORDER DATED: 29/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 14544
                          of 2022

                    In R/CRIMINAL APPEAL NO. 1569 of 2022

                                    With
                      R/CRIMINAL APPEAL NO. 1569 of 2022
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                      NARANBHAI SARMANBHAI BHETARIYA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR CHINTAN S POPAT(5004) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 3
NOTICE UNSERVED for the Respondent(s) No. 2
MS VRUNDA SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                            Date : 29/11/2023
                          COMMON 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

01.04.2022 passed by the learned District & Sessions Judge,

Junagadh in Criminal Appeal No.85 of 2015.

2. Heard, learned advocates appearing for respective

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parties and perused the impugned judgment and order of the

trial Court.

3. Learned Advocate Mr. Chintan Popat for the applicant

submits that the respondent - accused was convicted by the

learned trial Court, which was challenged before the learned

appellate Court, wherein, the judgment and order of the

conviction was reversed and the respondent - accused was

acquitted. Learned advocate further draws attention of this

Court with regard to the admission made by the respondent -

accused with regard to the signature on cheque. From the

judgment passed by the learned trial Court, it reveals that

application was given by the respondent - accused below

Exh.289 before the Punjab National Bank regarding

misplacing the cheque and prayed to stop the payment of

concerned cheque. However, the cheque was returned

without payment on the endorsement of not having the

sufficient fund. Mr. Popat, learned advocate further submits

that the respondent - accused was the transporter, wherein,

the complainant was the owner of the petrol-pump and

therefore, continuous account was maintained and for that,

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ledger accounts were produced as well as bills were exhibited

at Exh.123 to 251, wherein, the vehicle numbers, which are

mentioned, is admitted by the respondent - accused stating

that he is the owner of the said vehicles. Mr. Popat learned

advocate further submits that after the judgment and order

was passed by the learned trial Court, the complainant was

retired from the Firm and thereafter, the present appellant

was entered into the Firm as new partner and he himself put

in the witness-box at the appellate stage, wherein, he denied

with regard to the knowledge of the transaction as he was not

partner at the relevant point of time. Mr. Popat, learned

advocate further submits that learned appellate Court while

acquitting the respondent - accused, had given more

weightage to the evidence of the present appellant, which was

examined at appellate stage below Exh.23 and discarded the

evidence, which were proved by the complainant during the

trial in the form of bills below Exh.123 to 251. Mr. Popat,

learned advocate further submits that though the

presumption, which was in favour of the present complainant,

was not rebutted, the learned appellate Court had passed the

judgment and order of the acquittal without leading sufficient

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R/CR.MA/14544/2022 ORDER DATED: 29/11/2023

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defence 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. The appeal is admitted. Learned APP 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.

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