Solanki Nareshbhai Madhabhai vs State Of Gujarat
2023 Latest Caselaw 7719 Guj

                                                                                     NEUTRAL CITATION




   R/CR.MA/18542/2023                                  ORDER DATED: 18/10/2023

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 18542
                            of 2023
             In R/CRIMINAL APPEAL NO. 2378 of 2023
                             With
               R/CRIMINAL APPEAL NO. 2378 of 2023
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                        SOLANKI NARESHBHAI MADHABHAI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR AMIT P SOLIYA(10780) for the Applicant(s) No. 1
MR.JAY S SHAH(7244) for the Applicant(s) No. 1
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 : 18/10/2023
                   ORAL ORDER

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 18542 of 2023

1. Learned advocate Mr.Jay Shah for the applicant submits

that under the Negotiable Instruments Act, 1881 ('the

N.I.Act' hereinafter)two presumptions are provided one

under Section 118 of the N.I.Act and another is under

Section 139 of the N.I.Act. Under section 118 of the

N.I.Act it is provided that, until the contrary is proved,

that every transfer of negotiable instrument was made or

drawn for consideration" and Under Section 139 it is

provided 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 any part debt or

any liability."

NEUTRAL CITATION

R/CR.MA/18542/2023 ORDER DATED: 18/10/2023

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2. Learned advocate Mr.Jay Shah for the applicant submits

that in the case on hand, initially the cheque bearing

No.00006 was issued, which was dishonored and for that

the notice under Section 138 of the N.I.Act was issued on

10.07.2019. On receiving the notice, the accused had

approached to the complainant and gave assurance that

he would give fresh cheque i.e. No.000011 and that

would be honored and for that the undertaking was given

before the Notary, which was produced and which is part

of the record below Exhibit-29.

3. Learned Court had without appreciating the aforesaid

fact as well as the legal possession that though

presumptions which are in favour of the complainant

were not rebutted and the accused had not disputed the

signature or issuance of cheque in favour of the

complainant and signature of accused had passed the

judgment and order of the acquittal only on the ground

that there was no any consideration with regard to the

present cheque which was in dispute.

4. Learned advocate Mr.Jay Shah submits that addition to

NEUTRAL CITATION

R/CR.MA/18542/2023 ORDER DATED: 18/10/2023

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the issuance of the cheque, the signature was also

admitted on the understanding agreement however, the

learned trial Court had not considered the same and

passed the judgment and order of the acquittal and

therefore, he prays to allow this application and grant

leave to prefer an appeal.

5. In view of the above submissions, this Court deems it fit

to allow this application seeking leave to prefer an

appeal.

6. Hence, this application for leave to appeal is allowed and

stand disposed of accordingly.

ORDER IN R/CRIMINAL APPEAL NO. 2378 of 2023

The appeal is admitted. Learned APP Ms.Jhala waives

service of notice of admission on behalf of respondent-State.

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

Five Thousand Only) against the respondent-original accused.

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