Gujarat High Court
Kartikey Enterprise Thro ... vs State Of Gujarat on 9 October, 2023
Bench: M. K. Thakker
NEUTRAL CITATION
R/CR.MA/9744/2023 ORDER DATED: 09/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 9744 of
2023
In R/CRIMINAL APPEAL NO. 1276 of 2023
With
CRIMINAL MISC.APPLICATION (FOR CONDONATION OF DELAY) NO. 1
of 2023
In R/CRIMINAL MISC.APPLICATION NO. 9744 of 2023
With
R/CRIMINAL APPEAL NO. 1276 of 2023
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KARTIKEY ENTERPRISE THRO PRAMODBHAI MADHAVLAL SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR CJ VIN(978) for the Applicant(s) No. 1
MR HARDIK H DAVE(6295) for the Respondent(s) No. 2
MS DIVYANGNA P JHALA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 09/10/2023
ORAL ORDER
Order in Criminal Misc. Application No.9744 of
2023:-
1. Learned advocate Mr. C.J. Vin submits
that though the complainant had proved the case
beyond reasonable doubt with regard to the
issuance of cheque and to dishonor the same, the
learned trial Court had committed error in
acquitting the respondent accused from the
offence under Section 138 of the Negotiable
NEUTRAL CITATION
R/CR.MA/9744/2023 ORDER DATED: 09/10/2023
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Instruments Act, 1981. learned advocate Mr. Vin
relies on the decision rendered by the Hon'ble
Apex Court in the case P. Mohanraj vs. M/S. Shah
Brothers Ispat Pvt. Ltd reported in (2021) 6 SCC
258, wherein the Hon'ble Apex Court had held in
paragraph 37 as under:
"Likewise, under Section 139, a presumption
is raised that the holder of a cheque
received the cheque for the discharge, in
whole or in part, of any debt or other
liability. To rebut this presumption, facts
must be adduced which, on a preponderance
of probability (not beyond reasonable doubt
as in the case of criminal offences), must
then be proved. Section 140 is also
important, in that it shall not be a
defence in a prosecution for an
offenceunder Section 138 that the drawer
had no reason to believe when he issued the
cheque that the cheque may be dishonoured
on presentment for the reasons stated in
that Section, thus making it clear that
strict liability will attach, mens rea
being no ingredient of the offence."
2. Mr. Vin further submits that there were
four cheques in all issued and out of four
cheques, for the two cheques, conviction was
ordered and for the two cheques, acquittal was
NEUTRAL CITATION
R/CR.MA/9744/2023 ORDER DATED: 09/10/2023
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ordered. Though the evidence laid before the
learned trial Court was of the same nature but
different judgments, one in acquitting and one in
convicting the respondent was rendered.
3. In view of above submissions, this Court
finds that the application for leave to appeal is
required to be granted. Hence, application for
leave to appeal is allowed.
4. The application is disposed of as
allowed.
Order in Criminal Appeal No.1276 of 2023:-
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.
(M. K. THAKKER,J)
NABILA
