Rathod Javidbhai Amirbhai vs State Of Gujarat
2023 Latest Caselaw 7536 Guj

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      R/CR.MA/6497/2022                                       ORDER DATED: 11/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 6497 of
                            2022

                     In R/CRIMINAL APPEAL NO. 679 of 2022

                                        With
                          R/CRIMINAL APPEAL NO. 679 of 2022
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                             RATHOD JAVIDBHAI AMIRBHAI
                                       Versus
                                 STATE OF GUJARAT
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Appearance:
MR ANKUR Y OZA(2821) for the Applicant(s) No. 1
MS DIVYAGNA JHALA, APP for the Respondent(s) No. 1
VASIMRAJA A KURESHI(8609) for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                 Date : 11/10/2023

                              COMMON 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 Judicial Magistrate First Class, Shinor at

Vadodara dated 06.05.2021 in Criminal Case No.408 of 2015.

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R/CR.MA/6497/2022 ORDER DATED: 11/10/2023

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2. Heard, learned advocates appearing for respective

parties and perused the impugned judgment and order of the

trial Court.

3. Learned Advocate Mr. Ankur Oza for the applicant -

complainant submits that while acquitting the respondent -

accused, the learned trial Court had given more weightage to

the minor discrepancies. Though the respondent - accused

had not disputed the signature on the cheque, which was

issued in favour of the complainant and no any evidence or

the circumstance was led before the learned trial Court to

rebut the presumption, which was in favour of the

complainant under Section-139 of the N.I. Act, the judgment

and order of the acquittal was passed by the learned trial

Court. Learned trial Court had observed the minor

discrepancies like the details in the cheque, was filled up by

the same person or not; two cheques of the same date, cannot

be possible to even issued by the respondent - accused;

whether the cheque was deposited with the S.B.I., Sandhali

branch or the Bank of Baroda etc. Though there was no any

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R/CR.MA/6497/2022 ORDER DATED: 11/10/2023

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evidence in the nature of preponderance of probabilities, was

led by the respondent -accused for having the possession of

cheque by the complainant. Learned advocate submitted that

the learned trial Court had committed grave error in

acquitting the respondent - accused from the alleged offence.

4. 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.

ORDER IN CRIMINAL APPEAL:

1. The appeal is admitted. Learned APP waives service of

notice of admission on behalf of respondent - State. Learned

advocate Mr. Vasim Raja on behalf of learned advocate Mr.

M.M. Bukhari waives service of notice of admission for

respondent - accused and therefore, no bailable warrant is

required to be issued.

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R/CR.MA/6497/2022 ORDER DATED: 11/10/2023

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2. Record and proceedings be called for from the

concerned court.

3. Registry is directed to list the Criminal Appeal in

seriatim.

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