Asam Amad Sumra vs Aslam Suleman Sandhar
2024 Latest Caselaw 1059 Guj

Gujarat High Court

Asam Amad Sumra vs Aslam Suleman Sandhar on 7 February, 2024

                                                                              NEUTRAL CITATION




   R/CR.MA/10541/2023                            ORDER DATED: 07/02/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 10541
                          of 2023

                  In R/CRIMINAL APPEAL NO. 1392 of 2023

                                  With
                    R/CRIMINAL APPEAL NO. 1392 of 2023
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                           ASAM AMAD SUMRA
                                 Versus
                        ASLAM SULEMAN SANDHAR
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Appearance:
MR HARSHIL C DATTANI(6241) for the Applicant(s) No. 1
KRISHNAN M GHAVARIYA(8133) 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 : 07/02/2024

                              ORAL ORDER

ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 10541 of 2023

1. Learned advocate Mr.Harshil Dattani for the applicant

submits that the minor discrepancies were given more

weightage while acquitting the respondent-accused. The

case of the complainant was not believed by the learned

trial Court on two grounds i.e. (i) in the complaint it is

mentioned that the complainant is the owner of the boat

NEUTRAL CITATION

R/CR.MA/10541/2023 ORDER DATED: 07/02/2024

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however, in the cross examination it is mentioned that his

son is the owner of the boat and (ii) the transaction

which was made with the accused was proved through

the Exhibit 21 i.e. the Profit and Loss Account, however,

the learned trial Court did not believe that document on

the ground that there is no stamp or the signature of the

accused while receiving the amount.

2. Learned advocate Mr.Dattani submits that though

issuance of the cheque, demand notice was not denied

by the respondent-accused neither any probable defence

was raised during the trial, the learned trial Court has

shifted the burden on the complainant to prove the case

against the settled provision of law i.e. under Sections

118 and 139 of the Negotiable Instruments Act, 1886,

wherein the presumption is provided in favour of the

complainant and unless this presumption is rebutted, the

burden to prove the defence is on the respondent-

accused.

3. Learned advocate Mr.Dattani submits that despite no any

evidence which may be in the nature of preponderance of

probabilities was led by the respondent-accused, the

NEUTRAL CITATION

R/CR.MA/10541/2023 ORDER DATED: 07/02/2024

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judgment and order of acquittal was passed by the

learned trial Court.

4. In view of the above submissions, this Court deems it fit

to allow this application seeking leave to prefer an

appeal.

5. Hence, present application is allowed. Leave to prefer an

appeal is granted.

ORDER IN R/CRIMINAL APPEAL NO. 1392 of 2023

1. The appeal is admitted. Learned advocate Mr.Krishnan M

Ghavariya waives service of notice of admission on behalf

of respondents-original accused. Learned APP waives

service of notice of admission on behalf of respondent-

State.

2. Record and Proceedings shall be called for. Matter be

listed in seriatim.

(M. K. THAKKER,J) M.M.MIRZA