Gujarat High Court
Hari Kanabhai Vira (Ahir) vs State Of Gujarat on 29 September, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/17259/2023 ORDER DATED: 29/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO.
17259 of 2023
In R/CRIMINAL APPEAL NO. 2225 of 2023
With
R/CRIMINAL APPEAL NO. 2225 of 2023
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HARI KANABHAI VIRA (AHIR)
Versus
STATE OF GUJARAT
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Appearance:
MS AMITA S SHAH(2691) for the Applicant(s) No. 1
for the Respondent(s) No. 2
Ms. Monali Bhatt, Addl. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 29/09/2023
ORAL ORDER
1. Heard Mr. Amita Shah, learned advocate for the applicant-
original complainant. Rule returnable forthwith. Learned
Additional Public Prosecutor waives service of Rule on behalf of
the respondent State.
2. This application is filed under Section 378(4) of the Code of
Criminal Procedure seeking leave against the judgment and
order dated 31.5.2023 passed by the learned 2 nd Additional Chief
Judicial Magistrate, Anjar, Kutch in Criminal Case No.342 of
2020. By the said judgment and order, the learned Magistrate
has proceeded to record the acquittal of the present respondent -
original accused for the offence alleged under Section 138 of the
Negotiable Instruments Act.
3. Learned advocate for the applicant has drawn attention of
NEUTRAL CITATION
R/CR.MA/17259/2023 ORDER DATED: 29/09/2023
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this Court to the reasons assigned by the learned Magistrate,
while recording the order of acquittal. She has submitted that
the learned Magistrate committed serious error in taking into
consideration the cross examination of the complainant to
arrived at a finding that the accused had successfully rebutted
the presumption, whereby, calling upon the accused to prove his
case beyond reasonable doubt. Learned advocate for the
applicant has submitted that cogent material in the nature of the
statement of bank account has been brought on record vide
Exh.21, which goes to indicate that an amount in dispute has
been handed over to the original accused. The reference is made
to the three cheques dated 03.08.2019 for an amount of Rs.3
lakhs, 23.08.2019 for an amount of Rs.1,50,000/- and
31.08.2019 for an amount of Rs.1,35,000/- and has thereby
submitted that total amount in dispute of Rs.5,85,000/- being
realized by the respondent-accused has been clearly transpired
on the record. She, therefore, urged this Court to grant leave to
appeal.
4. Considering the aforesaid submissions of the learned
advocate and having perused the impugned order, prima facie,
the Court finds that an arguable case is made out by the
applicant for consideration of admission of appeal. Hence, the
present application is allowed and Leave to Appeal, as prayed
for, is hereby granted. Rule is made absolute.
ORDER IN CRIMINAL APPEAL NO.2225 OF 2023
Admit. Learned Additional Public Prosecutor waives service
of admission on behalf of the respondent State. Registry is
NEUTRAL CITATION
R/CR.MA/17259/2023 ORDER DATED: 29/09/2023
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directed to call for the Record and Proceedings of the case from
the concerned so as to reach this Court on or before 29.02.2024.
Registry is directed to notify the appeal for hearing on
29.02.2024.
(NISHA M. THAKORE,J)
KAUSHIK J. RATHOD
