Gujarat High Court
Hareshbhai Raghavjibhai Variya vs State Of Gujarat on 4 October, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/4149/2021 ORDER DATED: 04/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 4149
of 2021
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HARESHBHAI RAGHAVJIBHAI VARIYA
Versus
STATE OF GUJARAT
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Appearance:
MR ADITYA P MISTRI(11315) for the Applicant(s) No. 1
MR. BHAVIK P SHAH(6391) for the Respondent(s) No. 2
Ms. Vrunda Shah, Addl. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 04/10/2023
ORAL ORDER
1. Heard Mr. Aditya Mistri learned advocate for the applicant
and Mr. Bhavik Shah, learned advocate for the respondent no.2-
accused.
2. This application is filed under Section 378(4) of the Code of
Criminal Procedure seeking special leave to appeal against the
judgment and order dated 07.03.2020 passed by the learned 8 th
Additional Senior Civil Judge & ACJM, Surat passed in Criminal
Case No.15825 of 2010. By the said judgment and order, the
learned Magistrate has recorded the acquittal of respondent no.2
- original accused for the offence alleged under Section 138 of
the Negotiable Instruments Act.
3. Learned advocate for the applicant has invited attention of
this Court to the reasons assigned by the learned Magistrate,
while recording the impugned order of acquittal and has
submitted that learned Magistrate has drawn adverse inference
NEUTRAL CITATION
R/CR.MA/4149/2021 ORDER DATED: 04/10/2023
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against the applicant mainly on the ground that the original
complainant has failed to place on record the details of the Pan
Card and the Income Tax Returns, as against the specific
defence being raised by the respondent -accused with regard to
his financial capacity to give hand loan of an amount of
Rs.70,000/-. At the same time, the learned Magistrate has taken
note of the aforesaid document being brought on record by the
respondent -accused. The explanation offered by the
complainant with regard to the source of income has also not
been accepted by the learned Magistrate in absence of any
cogent material being brought on record. Prima facie, this Court
is of the view that the aforesaid approach of the learned
Magistrate is against the principle laid down by the Hon'ble
Supreme Court in the case of Tedi Singh vs. Narayan Dass
Mahant reported in 2022 Live Law (SC) 275. Learned advocates
appearing for the respective parties were called upon to confirm
the fact of any reply being given to the legal notice addressed by
the original complainant to the respondent accused. According
to the learned advocate for the applicant, no reply was given to
the legal notice.
4. Considering the aforesaid submissions of learned
advocates for the respective parties and having perused the
impugned judgment and order, the appeal deserves admission.
Hence, the present application seeking leave to appeal is
allowed and Leave to Appeal, as prayed for, is hereby granted.
(NISHA M. THAKORE,J)
KAUSHIK J. RATHOD
