Patel Jayntibhai Ranchodbhai vs State Of Gujarat
2023 Latest Caselaw 7359 Guj

                                                                                 NEUTRAL CITATION




     R/CR.MA/16204/2023                            ORDER DATED: 05/10/2023

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 16204
                            of 2023
             In R/CRIMINAL APPEAL NO. 2284 of 2023
                             With
               R/CRIMINAL APPEAL NO. 2284 of 2023
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                          PATEL JAYNTIBHAI RANCHODBHAI
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR KAMLESH S KOTAI(6150) for the Applicant(s) No. 1
for the Respondent(s) No. 2
DIVYANGNA JHALA, ADDL.PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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 CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
                        Date : 05/10/2023
                         ORAL ORDER

ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 16204 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 dated

25.07.2023, passed by the learned Additional Civil Judge &

Judicial Magistrate First Class, Vijapur, District Mehsana in

Criminal Case No.2733 of 2021.

2. Learned advocate Mr.Kamlesh Kotai for the applicant

submits that the judgment and order of the acquittal passed by

the learned Trial Court was mainly on two grounds one is time

barred debt and the another is no financial capacity of the

complainant was proved. Learned advocate Mr.Kotai submits

that the presumption under Section 139 of the Negotiable

NEUTRAL CITATION

R/CR.MA/16204/2023 ORDER DATED: 05/10/2023

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Instruments Act, 1881 would be in favour of the complainant

and there is no requirement to produce the Income Tax return

or the source of income of the complainant. Learned advocate

Mr.Kotai has further relied on the undertaking signed by the

accused as well as his wife and son who had attested as

witnesses wherein it is mentioned that amount of Rs.15 Lakh

which was given would be returned within a period of five

years from the date of this undertaking i.e. 04.01.2014, which

would give acknowledgment of debt. Therefore, the ground on

which the judgment and order of acquittal was passed is

without considering the undertaking which is exhibited during

the trial at Exhibit No.24.

3. Considering the averments made in the application and

submissions made by the learned advocate appearing for the

applicant, there is some arguable case in favour of the

applicant, leave, as prayed for, is granted. This application is

allowed and stands disposed of accordingly.

ORDER IN R/CRIMINAL APPEAL NO. 2284 of 2023

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

NEUTRAL CITATION

R/CR.MA/16204/2023 ORDER DATED: 05/10/2023

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

3. Let R & P be called for, so as to reach before this Court on or before 24.10.2023.

4. The matter is adjourned to 25.10.2023.

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