Patel Kanubhai Ranchhodbhai vs Patel Nareshbhai Dhulabhai ...
2023 Latest Caselaw 6842 Guj

                                                                             NEUTRAL CITATION




     R/CR.MA/15023/2023                         ORDER DATED: 15/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 15023 of 2023
               In F/CRIMINAL APPEAL NO. 29606 of 2023
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                   PATEL KANUBHAI RANCHHODBHAI
                              Versus
             PATEL NARESHBHAI DHULABHAI SHANKARBHAI
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Appearance:
MR AMIT P PATEL(3498) for the Applicant(s) No. 1
for the Respondent(s) No. 1
Ms. Monali Bhatt, Addl. PUBLIC PROSECUTOR for the Respondent(s)
No. 2
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
                  Date : 15/09/2023
                    ORAL ORDER

1. Heard Mr. Amit Patel, learned advocate for the applicant- original complainant and paper book of relevant documents has been placed on record and same has been taken on record.

2. This application is filed seeking leave to appeal under Section 378(4) of the Code of Criminal Procedure against the impugned judgment and order dated 26.07..2023 passed by the learned Additional Civil Judge and Judicial Magistrate First Class, Vijapur, Dist. Mehsana in Criminal Case No.1624 of 2022. By the said judgment and order, the learned Magistrate has recorded the acquittal of the present respondent no.1- original accused for the alleged offence punishable under Section 138 of the Negotiable instruments Act.

3. Learned advocates for the applicant has invited attention of this Court to the reasons assigned by the learned Magistrate while recording impugned order of acquittal, which is under

NEUTRAL CITATION

R/CR.MA/15023/2023 ORDER DATED: 15/09/2023

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challenge. It is submitted that the learned Magistrate has committed gross error in entering into the aspect of financial capacity of the original complainant without there being any challenge by the respondent-accused at the very first instance by giving reply to the legal notice issued by the complainant under Section 138 of the Negotiable Instruments Act. Learned advocate has further submitted that the learned Magistrate has taken into consideration the capacity of the complainant to issue such cheque which was otherwise not in issue at all. Lastly, learned advocate for the applicant has submitted that the Court on its own had proceeded to cross examine the complainant wherein the aspect of Section 11 of the Contract Act was taken into consideration in the proceedings arising out of Section 138 of the Negotiable Instruments Act.

4. Considering the submissions of learned advocate for the applicant - original complaint and having perused the impugned order, the appeal deserves consideration. Hence, the present application seeking leave to appeal is hereby a llowed and Leave to Appeal, as prayed for, is hereby granted. Registry is directed to notify the Criminal Appeal for admission hearing.

(NISHA M. THAKORE,J) KAUSHIK J. RATHOD