Manojbhai Dalsabhai Patel vs Dharmendrakumar Prahaladbhai ...
2023 Latest Caselaw 7621 Guj

                                                                          NEUTRAL CITATION




   R/CR.MA/18486/2023                        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. 18486
                            of 2023
             In R/CRIMINAL APPEAL NO. 2330 of 2023
                             With
               R/CRIMINAL APPEAL NO. 2330 of 2023
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                    MANOJBHAI DALSABHAI PATEL
                              Versus
                DHARMENDRAKUMAR PRAHALADBHAI SONI
==========================================================
Appearance:
MR HARDIK C RAWAL(719) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS DIVYANGNA JHALA, ADDL.PUBLIC PROSECUTOR for the
Respondent(s) No. 2
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 CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
                       Date : 13/10/2023
                        ORAL ORDER

ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 18486 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 Chief Judicial Magistrate

(First Class), Patan dated 03.08.2023 in Criminal Case

No.1789 of 2018.

2. Learned advocate Mr.Raval for the applicant submits that

the learned trial Court had committed a grave error in

acquitting the respondent-accused on the sole ground

that the complainant could not prove the financial

NEUTRAL CITATION

R/CR.MA/18486/2023 ORDER DATED: 13/10/2023

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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 discharged of, whole or part of any debt

or liability."

3. Learned advocate Mr. Raval 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 the complainant under

Section1 39 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,

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R/CR.MA/18486/2023 ORDER DATED: 13/10/2023

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which may not be legally enforceable. Thereafter only

the burden would be shifted on the complainant.

4. 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.

5. In view of above submissions, the application for leave to

appeal is required to be allowed. Hence, application is

allowed.

ORDER IN R/CRIMINAL APPEAL NO. 2330 of 2023

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

notice of admission on behalf of the respondent-State.

2. Issue Bailable Warrant in the sum of Rs.5,000/- (Rupees

Five Thousand Only) against the respondent-original accused.

3. R & P be called for. The matter be listed in seriatim.

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