Gujarat High Court
Parsotambhai Dahyabhai Patel Partner ... vs Shaileshbhai Dahyabhai Vashi ... on 6 February, 2024
NEUTRAL CITATION
R/CR.MA/22775/2023 ORDER DATED: 06/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 22775
of 2023
In R/CRIMINAL APPEAL NO. 297 of 2024
With
R/CRIMINAL APPEAL NO. 297 of 2024
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PARSOTAMBHAI DAHYABHAI PATEL PARTNER OF M/S MANAN
AGRICULTURE AGENCY
Versus
SHAILESHBHAI DAHYABHAI VASHI PROPRIETOR OF M/S KRISHNA
EARTH MOVERS
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Appearance:
KRUTARTH K DESAI(9662) 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 MRS. JUSTICE M. K. THAKKER
Date : 06/02/2024
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL)
NO. 22775 of 2023
1. Learned advocate Mr.Krutarth Desai for the applicant
submits that the judgment and order of the conviction
which was passed by the learned Judicial Magistrate First
Class, Hansot, whereby the respondent-accused was
convicted for the offence punishable under Section 138 of
the Negotiable Instruments Act, 1886 ('the N.I.Act'
hereinafter) and was ordered to undergo the simple
NEUTRAL CITATION
R/CR.MA/22775/2023 ORDER DATED: 06/02/2024
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imprisonment of one year along with fine of
Rs.1,10,10,000/- was reversed by the learned appellate
Court in the appeal preferred by the respondent-accused
being Criminal Appeal No.36 of 2022 vide judgment and
order dated 21.10.2023. Learned advocate Mr.Desai has
drawn the attention of this Court with regard to the
reasons assigned by the learned trial Court for convicting
the respondent-accused and by the appellate Court for
reversing the same.
2. Learned advocate Mr.Desai submits that the judgment
and order of the acquittal was passed mainly on the
ground that the challan is not proved by the complainant
and signature of the receiver is not mentioned in the
challan. Learned advocate Mr.Desai has drawn the
attention of this Court with regard to Exhibits 53 to 63
wherein it transpires that in some of the challan, in the
column of receiver's signature name is mentioned
A.Kadar. Learned advocate Mr.Desai submits that there
was no any defence raised by the respondent-accused
that this A.Kadar is not working with the respondent-
accused.
NEUTRAL CITATION
R/CR.MA/22775/2023 ORDER DATED: 06/02/2024
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3. Learned advocate Mr.Desai submits that there was two
sisters concerned of the accused one is M/s.Krishna Aqua
and the another is M/s.Krishna Earth Movers. On perusing
the cahllan i.e. challan Nos.54, 57 to 61 and 63, the same
are pertaining to M/s.Krishna Aqua and challan Nos.56
and 62 are in the name of the applicant M/s.Krishna Earth
Movers. It is also admitted by both the courts below that
the cheque was issued in the account maintained by the
respondent-accused, namely, Shailesh Vashi and that
account is saving account. Learned appellate Court did
not believe the case of the complainant only on the
ground that full name of Shailesh Vashi is not mentioned
in the challan. Though the case of the complainant is that
proprietor of Krishna Earth Movers is Shaileshbhai
Dahyabhai Vashi is the same person, who signed in the
challan as a Shailesh Vashi, the said case was not
believed by the learned appellate Court and judgment
and order of the conviction was reversed.
4. Learned advocate Mr.Desai submits that though there
was no any defence raised by the complainant with
regard to non-receving of the amount or non-issuance of
NEUTRAL CITATION
R/CR.MA/22775/2023 ORDER DATED: 06/02/2024
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the cheque, the learned appellate Court had disbelieved
the case of the complainant and reversed the judgment
and order of the acquittal.
5. In view of the above submissions, this Court deems it fit
to allow this application for seeking leave to prefer an
appeal.
6. Hence, present application is allowed. Leave to prefer an
appeal is granted.
ORDER IN R/CRIMINAL APPEAL NO. 297 of 2023
1. The appeal is admitted. Learned APP Ms.Monali Bhatt
waives service of notice of admission on behalf of
respondent-State.
2. Issue Bailable Warrant in the sum of Rs.5,000/- (Rupees
Five Thousand Only) against the respondent-original
accused.
3. Record and Proceedings shall be called for. Matter be
listed in seriatim.
(M. K. THAKKER,J)
M.M.MIRZA
