Suthar Rajesh Kumar Jayantilal vs State Of Gujarat
2023 Latest Caselaw 7371 Guj

                                                                                 NEUTRAL CITATION




     R/CR.MA/20131/2021                            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. 20131
                          of 2021

                    In R/CRIMINAL APPEAL NO. 1688 of 2021

                                    With
                      R/CRIMINAL APPEAL NO. 1688 of 2021
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                      SUTHAR RAJESH KUMAR JAYANTILAL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR DIPEN K DAVE(3296) for the Applicant(s) No. 1
MR NIKUL K SONI(5122) for the Respondent(s) No. 2
MS DIVYANGNA JHALA, APP 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 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 3rd Additional Chief Judicial Magistrate, Mehsana

in Criminal Case No.3036 of 2019.

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R/CR.MA/20131/2021 ORDER DATED: 05/10/2023

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2. Heard learned advocates appearing for the respective

parties and perused the impugned judgment and order of the

trial Court.

3. Mr. Shubham B. Dave, learned advocate on behalf of Mr.

Dipen Dave, learned advocate appearing for the applicant -

original complainant submits that the learned trial Court had

committed grave error in not considering the evidence with

regard to the income in view of the admitted fact that

signature on the cheque is not disputed and though

presumption is in the favour of the complainant, the learned

trial Court had shifted burden to rebut the presumption on the

complainant. Learned advocate further draw the attention of

this Court on the evidence at Exh.27, which is certificate,

wherein, it is mentioned that the loan was taken by the

complainant to lend the money to the accused. However,

without considering the aforesaid evidence, the judgment and

order of the acquittal was passed.

4. Learned advocate Mr. Nikul Soni for the respondent no.2

- accused submits that complainant is failed to prove the case

before the learned trial court in establishing the source of

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R/CR.MA/20131/2021 ORDER DATED: 05/10/2023

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income and lending money to the accused. Therefore, the

judgment and order of acquittal is rightly passed. Prima-facie,

it appears that prior to lending money to the accused, the loan

was taken from the Sahakari Mandali and income-tax return,

which was produced reveals that the complainant was serving

as a teacher and having the salary of Rs.65,880/-.

5. Considering the avernments made in the application and

submissions made by the learned advocates appearing for the

respective parties, there is some arguable case in favour of

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

is allowed. Rule is made absolute accordingly.

ORDER IN CRIMINAL APPEAL:-

The appeal is admitted.

As the learned advocate Mr. Nikul Soni appears on

behalf of respondent no.2 - accused, bailable warrant is not

required to be issued upon the accused.

(M. K. THAKKER,J) A. B. VAGHELA