Girishbhai Mohanlal Ghaghada vs State Of Gujarat
2024 Latest Caselaw 1171 Guj

Gujarat High Court

Girishbhai Mohanlal Ghaghada vs State Of Gujarat on 9 February, 2024

                                                                                  NEUTRAL CITATION




     R/CR.MA/2632/2024                               ORDER DATED: 09/02/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 2632 of
                            2024
                              In
               R/CRIMINAL APPEAL NO. 331 of 2024
                            With
              R/CRIMINAL APPEAL NO. 331 of 2024
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                         GIRISHBHAI MOHANLAL GHAGHADA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR CHINTAN S POPAT(5004) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS. M.H.BHATT, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                 Date : 09/02/2024

                                  ORAL ORDER

Order in Criminal Misc. Application:

1. This is an application by the applicant - original complainant under Section 378(4) of the Code of Criminal Procedure, 1973, seeking leave of this Court to present an appeal against the judgment and order of acquittal, passed by the learned Judicial Magistrate First Class, Sutrapada dated 22.12.2023 in Criminal Case No. 485 of 2021.

2. Heard, learned advocates appearing for respective parties and perused the impugned judgment and order of the trial Court.

NEUTRAL CITATION

R/CR.MA/2632/2024 ORDER DATED: 09/02/2024

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3. Mr. Chintan Popat, learned advocate appearing for the applicant submits that the judgement and order by the learned trial Court for acquitting the respondent-accused was passed on two ground one is on which date and which place and how many installments the amount was lended is not proved by the complainant. Second is the complaint fails to establish that he is financially capable to lend the amount to the respondent-accused. Learned advocate submits that with regard to the first ground when prima facie the complainant has established the case that the accused has issued cheque towards the discharge of legally enforceable debt than, it is for the accused to rebut the presumption which is in favour of the complainant under Section 118 and 139 of the Negotiable Instrument Act by creating circumstances or by leading the probable defence. Learned advocate further submits that so far as the second ground is concerned, the complainant had examined his daughter who had testified in her evidence that the permanent alimony which was received in the divorce proceedings by her husband was lended by the father in two installments, the first is Rs.4,00,000/- and another is Rs.3,00,000/-. Learned advocate submits that though the signature was not disputed neither the demand notice reply, the learned trial Court has shifted onus on the complainant to prove the case against the respondent-accused. Learned advocate submits that without any cogent reasons, the judgement and order of acquittal was passed.

NEUTRAL CITATION

R/CR.MA/2632/2024 ORDER DATED: 09/02/2024

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4. Considering the avernments made in the application and submissions made by the learned advocates appearing for the respective parties, this Court finds that there is some arguable case in favour of the applicant, therefore, leave, as prayed for, is granted. This application is allowed.

Order in Criminal Appeal:

1. Appeal is admitted. Learned APP waives service of notice of admission on behalf of respondent No.1 - 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 be called for from the concerned court.

4. List this matter in seria tim.

(M. K. THAKKER,J) BEENA SHAH