Patel Kanubhai Ranchhodbhai vs Patel Vishnubhai Somabhai ...
2023 Latest Caselaw 7011 Guj

                                                                                  NEUTRAL CITATION




      R/CR.MA/14667/2023                             ORDER DATED: 22/09/2023

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               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 14667 of 2023

                     In F/CRIMINAL APPEAL NO. 29632 of 2023

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                         PATEL KANUBHAI RANCHHODBHAI
                                    Versus
                      PATEL VISHNUBHAI SOMABHAI PUJABHAI
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Appearance:
MR AMIT P PATEL(3498) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS. M.H. BHATT, APP for the Respondent(s) No. 2
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     CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                               Date : 22/09/2023

                                 ORAL ORDER

1. Heard Mr. Amit Patel, learned advocate on record for the

applicant-original complainant.

2. Rule returnable forthwith. Learned APP waives service of notice

of rule for and on behalf of respondent-State.

3. 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 & Judicial Magistrate First Class, Vijapur, Dist.

Mehsana in Criminal Case No.1623 of 2022. By the said judgment and

order, the learned Magistrate has recorded the acquittal of the

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R/CR.MA/14667/2023 ORDER DATED: 22/09/2023

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present respondent - original accused for the alleged offence

punishable under Section 138 of the Negotiable instruments Act.

4. Learned advocate on record for the applicant-original

complainant has drawn attention of this Court to the order dated

15.09.2023 passed in R/Criminal Misc. Application No. 15023 of 2023 in

F/Criminal Appeal No. 29606 of 2023 and has submitted that the

learned Magistrate has proceeded with dismissal of the complaint in

the present case on the similar grounds as taken note of by this Court

in R/Criminal Misc. Application No. 15023 of 2023 in F/Criminal Appeal

No. 29606 of 2023. It is therefore submitted by learned advocate that

the present matter requires consideration and has urged this Court to

grant leave to appeal.

5. This Court, upon appreciation of the reasons assigned by the

learned Magistrate while examining the impugned order in similar set

of facts, has granted leave to appeal. The order reads as under:

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

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R/CR.MA/14667/2023 ORDER DATED: 22/09/2023

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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 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 allowed and Leave to Appeal, as prayed for, is hereby granted. Registry is directed to notify the Criminal Appeal for admission hearing.

6. Considering the aforesaid submissions of learned advocate for

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the applicant and having perused the impugned order, the present

application is hereby allowed. Rule is made absolute. Registry is

directed to notify the Criminal Appeal for admission hearing.

(NISHA M. THAKORE,J) SUYASH SRIVASTAVA