Gujarat High Court
M/S. Natural Coal Enterprise ... vs State Of Gujarat on 10 October, 2023
Bench: M. K. Thakker
NEUTRAL CITATION
R/CR.MA/8884/2021 ORDER DATED: 10/10/2023
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```IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 8884 of
2021
In R/CRIMINAL APPEAL NO. 707 of 2021
With
R/CRIMINAL APPEAL NO. 707 of 2021
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M/S. NATURAL COAL ENTERPRISE THROUGH ASHOKBHAI DAMJIBHAI
KOTADIYA
Versus
STATE OF GUJARAT
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Appearance:
VIJAY H PATEL(7361) for the Applicant(s) No. 1
MR HEMANT B RAVAL(3491) for the Respondent(s) No. 2
MS DIVYANGNA JHALA,ADDL.PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 10/10/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO
APPEAL) NO. 8884 of 2021
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, passed by the learned Additional
Chief Judicial Magistrate, Morbi dated
17.03.2021 in Criminal Case No.4070 of 2016.
2.Learned advocate Mr.Vijay Patel for the
applicant submits that though the invoices
were produced and proved below Exhibit 25 to
NEUTRAL CITATION
R/CR.MA/8884/2021 ORDER DATED: 10/10/2023
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67, learned judge observed that there is no
contract, which is executed between the
parties. Learned advocate Mr.Vijay Patel
further submits that there was no any notice,
which was issued disputing the price and
quantum of the goods during the existence of
the contract, merely the defence, which was
taken without placing evidence on record that
goods were not received would, not sufficient
to rebut the evidence, which is in favour of
the complainant under Section 139 of the
Negotiable Instruments Act, 1881.
3.Learned advocate Mr.Patel further draws the
attention of the ledger book, which is
reproduced in the judgment below Exhibit 68
and 69 wherein it transpires that some of the
payment was made through RTGS and ultimately
the total amount, which is mentioned in the
ledger book is matched with the cheque amount
which was issued. Learned advocate Mr.Patel
NEUTRAL CITATION
R/CR.MA/8884/2021 ORDER DATED: 10/10/2023
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further submits that though the complainant
had proved the legally enforceable debt
during the trial and though the accused
failed to rebut the presumption, the trial
court had acquitted the respondent-accused
from the charges and committed grave error.
4.In view of above submissions, application for
seeking leave to appeal is allowed.
ORDER IN R/CRIMINAL APPEAL NO. 707 of 2021
1. Appeal is admitted. Learned advocate
Mr.Hemant Raval waives service of notice of
admission on behalf of respondents-original
accused. Learned APP waives service of notice of
admission on behalf of respondent-State. R & P be
called for.
(M. K. THAKKER,J)
M.M.MIRZA
