Gujarat High Court
Prakshbhai Jinabhai Kanani vs State Of Gujarat on 6 February, 2024
NEUTRAL CITATION
R/CR.MA/21779/2023 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.
21779 of 2023
In
R/CRIMINAL APPEAL NO. 298 of 2024
With
R/CRIMINAL APPEAL NO. 298 of 2024
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PRAKSHBHAI JINABHAI KANANI
Versus
STATE OF GUJARAT
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Appearance:
MR VIRAL V DAVE(3846) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 06/02/2024
ORAL ORDER
R/CRIMINAL MISC. APPLICATION (FOR LEAVE TO APPEAL)
NO.21779 OF 2023
1. Learned advocate Mr. Viral V. Dave for the applicant
submits that though it is the case of the complainant in the
complaint that the complainant had sold the polyester film to
the respondent-accused who is running the business of
punching machine, with regard to the payment of the goods, out
of Rs.13,88,345/-, the amount of Rs.6,93,607/- was paid in
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R/CR.MA/21779/2023 ORDER DATED: 06/02/2024
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installment and for the remaining amount of Rs.6,94,738/-, the
disputed cheque was issued.
2. Learned advocate has drawn the attention of this Court to
the cross-examination of the complainant, wherein the number
of bills were admitted to have been paid and with regard to Bill
Nos.15 and 19, the amount is remained unpaid.
3. Learned advocate submits that though the ledger account
which was produced below Exh. 30 and the income tax returns
reflecting the due amount produced below Exh. 31 and 32, the
learned trial Court did not believe the case of the complainant
only on the ground that there is a discrepancy in the amount
mentioned in the ledger account and the amount mentioned in
the disputed cheque.
4. Learned advocate submits that in the cases filed under
Section 138, the amount of the cheque which is mentioned is to
be considered to show that there was a transaction between the
parties and towards the payment of legally enforceable debt, the
cheque was issued not for the recovery of the amount of the bill.
5. Learned advocate submits that the issuance of cheque was
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R/CR.MA/21779/2023 ORDER DATED: 06/02/2024
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not disputed by the respondent-accused, in fact, in the
statement recorded under Section 313 of the Criminal
Procedure Code, it was contended that the cheque was issued
towards the security. Even if that defence is to be believed, then
also on non-payment of the bill amount, the cheque would
mature and the same can be encashed for recovery of the dues.
6. Learned advocate submits that though the complainant
had discharged his initial burden and the presumption which is
in favour of the complainant was not rebutted by the
respondent-accused by leading probable defence, the judgment
and order was passed by the learned trial Court acquitting the
respondent-accused.
7. In view of the above submissions, this Court deems it fit to
allow this application seeking leave to prefer an appeal. Hence,
this application stands allowed and disposed of.
R/CRIMINAL APPEAL NO. 298 OF 2024
ADMIT.
Learned APP Ms. Monali Bhatt for the Respondent-State
NEUTRAL CITATION
R/CR.MA/21779/2023 ORDER DATED: 06/02/2024
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waives service of notice of admission.
Issue Bailable Warrant in the sum of Rs.5,000/- (Rupees
Five Thousand only) against the respondent-accused.
(M. K. THAKKER,J)
Bharat
