Dhavalkumar Arvindbhai Modi vs State Of Gujarat
2023 Latest Caselaw 6497 Guj

                                                                                    NEUTRAL CITATION




     R/CR.MA/8616/2021                                ORDER DATED: 05/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 8616 of 2021

                    In R/CRIMINAL APPEAL NO. 688 of 2021

                                       With
                         R/CRIMINAL APPEAL NO. 688 of 2021
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                         DHAVALKUMAR ARVINDBHAI MODI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR.NANDISH H THACKAR(7008) for the Applicant(s) No. 1
MR HARSH A PRAJAPATI(11941) for the Respondent(s) No. 2
MR NARENDRA L JAIN(5647) for the Respondent(s) No. 2
MS VRUNDA SHAH ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                  Date : 05/09/2023

                                   ORAL ORDER

1. Heard Mr. Nandish Thackar, learned advocate for the applicant - original complainant and Mr. Narendra Jain, learned advocate for the respondent No.2 - original accused.

2. This application seeking leave to appeal is filed under Section 378(4) of the Code of Criminal Procedure against the judgment and order dated 20.03.2021 passed by the learned 3 rd Additional Chief Judicial Magistrate, Ankleshwar, Bharuch, in Criminal Case No.4991 of 2015. By the said judgment and order, the learned Magistrate has proceeded to record acquittal of the present respondent - original accused under Section 255(1) of the Code of Criminal Procedure extending the benefit of doubt for the offence punishable under Section 138 of the Negotiable Instruments Act.

NEUTRAL CITATION

R/CR.MA/8616/2021 ORDER DATED: 05/09/2023

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3. Learned advocate for the applicant has drawn attention of this Court to the reasons assigned by the learned Magistrate. It is submitted that the principally on the ground of non-establishment of the fact by the complainant of lending the amount as contended in the complaint, the impugned judgment and order is passed in favour of the original accused. It is further submitted that the learned Magistrate has committed serious error in taking into consideration the material in the form of public notice dated 31.03.2013, which has been brought on record by the respondent vide Exhibit 48 to arrive at a finding that the probable defence supported by the material as emerged on record rebutted the presumption raised in favour of the original complainant. Learned advocate for the applicant has relied upon the judgment of the Hon'ble Apex Court in the case of Uttam Ram Vs. Devinder Singh Hudan and Another reported in (2019) 10 SCC 287, wherein in the similar set of facts, the Hon'ble Apex Court has discarded the form of such evidence of public notice, which in the said case was in the form of entry maintained by the concerned police station with regard to the loss of cheque book. By referring to the aforesaid judgment, the learned advocate has submitted that once statutory presumption arose in favour of the complainant, the burden was on the accused to rebut the presumption that the cheque was issued not for any debt or any other liability. He, therefore, urged this Court to grant leave to appeal.

4. On other hand, present application has been vehemently objected by the learned advocate on record for the respondent - original accused. He has relied upon the reasons assigned by the learned Magistrate, while passing the impugned judgment and order of acquittal. The attention of this Court is invited to the fact

NEUTRAL CITATION

R/CR.MA/8616/2021 ORDER DATED: 05/09/2023

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that it is contended in the complaint that the cheque was issued on 25.04.2013, whereas the public notice with regard to the loss of cheque was circulated on 31.03.2013, which was much prior in point of time. He, therefore, submitted that noticing the fact that the blank cheques were misused by the original complainant, the learned Magistrate has rightly called upon the original complainant to prove his case beyond reasonable doubt, more particularly, the fact that cheque was issued towards legally enforceable debt.

5. Having heard learned advocates on record for the respective parties and having perused the relevant documents being brought on record and the impugned judgment and order, prima facie, this Court finds that an arguable case is made out for consideration for admission of appeal. Hence, present application seeking leave to appeal is allowed. Rule is made absolute.

CRIMINAL APPEAL No.688 of 2021:

ADMIT. Learned APP waives service of Notice of admission on behalf of the respondent No.1 - State and learned advocate Mr. Jain waives service of Notice of admission on behalf of the respondent No.2 - original accused.

Appeal be notified for final hearing on 30.11.2023.

Let R & P be called for so as to reach this Court before the next date of hearing.

(NISHA M. THAKORE,J) Y.N. VYAS