Kishorbhai S Lakdawala vs Farzan Abdul Khatri
2023 Latest Caselaw 7875 Guj

                                                                                              NEUTRAL CITATION




    R/CR.MA/5683/2022                                        ORDER DATED: 25/10/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 5683 of
                            2022

                   In R/CRIMINAL APPEAL NO. 607 of 2022

                                      With
                        R/CRIMINAL APPEAL NO. 607 of 2022
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                            KISHORBHAI S LAKDAWALA
                                     Versus
                              FARZAN ABDUL KHATRI
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Appearance:
MR RUTVIJ S OZA(5594) for the Applicant(s) No. 1,1.1,1.2,1.3
NOTICE SERVED for the Respondent(s) No. 1
MS DIVYANGNA JHALA APP for the Respondent(s) No. 2
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 CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                 Date : 25/10/2023

                                  ORAL ORDER

Order in Criminal Misc. Application This is an application filed by the applicant under Section 302 of the Code of Criminal Procedure, 1973 and Section 378(4) of the Code of Criminal Procedure, 1973 seeking substitution of the heirs in place of the complainant as the complainant expired during the pendency of the trial. It is submitted by the learned advocate Mr.Oza that after evidence on both the sides were over and arguments were started, the original complainant expired on 11.04.2021. However, due to the pandemic, fact regarding the death of the complainant was not brought to the notice of the Court below and the judgment and order of the acquittal was passed by the

NEUTRAL CITATION

R/CR.MA/5683/2022 ORDER DATED: 25/10/2023

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learned trial court.

Learned advocate Mr.Rutvij Oza, submits that learned trial Court had framed the 8 points during the trial and except point No.2, all other points were answered in affirmative. Learned advocate, Mr.Oza, further submits that with regard to the issuance of the cheque and the signature, learned trial Court held in his favour. However, with regard to the point No.2, i.e. whether the complainant lent the money, the answer given by the learned trial Court is in negative. Learned advocate, Mr.Oza, further draws attention of this Court to the reasoning given by the trial Court for acquitting the respondent -accused that if there is friendly relations between the parties, then, advancing money to the respondent- accused cannot be believed. Further reasons which are mentioned in the judgment and order of acquittal is with regard to the pendency of the other criminal case which is filed by the complainant against the other accused and it was further observed by the learned trial Court that in view of the many cases filed by the complainant, the credibility is under shaken. Learned advocate, Mr.Oza, further submits that there was no any evidence which was led by the respondent- accused to rebut the presumption during the cross examination. Though there was no probable defence which was raised by the accused with regard to the issuance of the cheque, learned trial Court passed the order of acquittal and given its own finding with regard to the non possibility of advance money when friendly relations were there. Mr.Oza, learned advocate further submits

NEUTRAL CITATION

R/CR.MA/5683/2022 ORDER DATED: 25/10/2023

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that under Sections 118 and 139 of the Negotiable Instruments Act when presumption is in favour of the complainant, it is to be rebutted by the respondent-accused by pleading the case and leading the evidence which may be in the nature of preponderance of the probability.

In view of the above submissions, this Court deems it fit to allow the application seeking leave to prefer an appeal and to allow this application under Section 302 of the Code of Criminal Procedure, 1973 substituting the heirs of the complainant replacing the complainant. Application is allowed and disposed of accordingly.

Order in Criminal Appeal

Appeal is admitted.

Learned advocate Mr.Dhruv Dave, waives service of notice of admission on behalf of Respondent No.1 and Ms.Divyangana Jhala, learned APP waives service of admission on behalf of Respondent-State.

Record and proceedings be called for from the concerned court. Registry is directed to list the Criminal Appeal in seriatim.

(M. K. THAKKER,J) ASHISH M. GADHIYA