Patel Chimanlal Gangarambhai vs State Of Gujarat
2023 Latest Caselaw 7618 Guj

                                                                                 NEUTRAL CITATION




     R/CR.MA/8395/2023                              ORDER DATED: 13/10/2023

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 8395 of
                             2023
             In R/CRIMINAL APPEAL NO. 1044 of 2023
                             With
               R/CRIMINAL APPEAL NO. 1044 of 2023
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                         PATEL CHIMANLAL GANGARAMBHAI
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MS GEETANJALI R SONERAO FOR MR VASANT R BAROT(5746) for the
Applicant(s) No. 1
MR MANISH J PATEL(2131) for the Respondent(s) No. 2
MS NAMRATA R MULCHANDANI(9956) for the Respondent(s) No. 2
MS DIVYANGNA ZHALA, ADDL.PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                Date : 13/10/2023

                                 ORAL ORDER

ORDERIN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 8395 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, passed by

the learned 3rd Additional Civil Judge and Judicial Magistrate

First Class, Modasa dated 15.02.2023 in Criminal Case No.2900

of 2021.

2. Learned advocate Ms.Geetanjali Sonerao along with

Mr.Barot for the applicant submits that the learned trial Court

NEUTRAL CITATION

R/CR.MA/8395/2023 ORDER DATED: 13/10/2023

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had committed a grave error in acquitting the respondent-

accused on the sole ground that the complainant could not

prove the financial capacity to lend the money to the

respondent-accused. Learned advocate further submits that

under the Negotiable Instruments Act, 1881 ('the N.I.Act'

hereinafter), two presumptions are provided; (1) under Section

118 and another is under Section 139. Under Section 118 of

the N.I.Act it provides that "it is presumed, until the contrary is

proved, that every transfer of negotiable instrument was made

or drawn for consideration". Under Section 139 of the N.I.Act it

provides that "unless the contrary is proved, it shall be

presumed that the holder of the cheque received the cheque

for the discharge of, whole or part of any debt or liability."

2. Learned advocate Ms.Geetanjali Sonerao further submits

that in the present case, issuance of the cheque is not in

dispute and signature is also not disputed by the respondent-

accused. In that case, presumption would come into picture,

which is in favour of complainant under Section 139 of the

N.I.Act. It is for the accused to prove through the evidence,

which would be in the nature of preponderance of the

probabilities regarding the debt, which may not be legally

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R/CR.MA/8395/2023 ORDER DATED: 13/10/2023

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enforceable. Thereafter only the burden would be shifted on

the complainant.

3. Instead of considering the above settled position, learned

trial Court had immediately shifted the burden on the

complainant to prove his financial capacity when the issuance

of the cheque and signature was not disputed by the accused.

4. In view of above submissions, the application for leave to appeal is required to be allowed. Hence, application is allowed. Rule is made absolute accordingly.

ORDER IN R/CRIMINAL APPEAL NO. 1044 of 2023

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

notice of admission on behalf of the respondent-State and

Mr.Manish Patel waives service of notice of admission on

behalf of respondent No.2.

2. R & P be called for. Matter be listed in seriatim.

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