Mohammadhanif Azammiya Malek vs Vahora Maksudbhai Ganibhai (Kapadiya ...
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Gujarat High Court

Mohammadhanif Azammiya Malek vs Vahora Maksudbhai Ganibhai (Kapadiya ... on 13 February, 2024

                                                                             NEUTRAL CITATION




     R/CR.MA/2810/2024                          ORDER DATED: 13/02/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 2810 of
                            2024
                              In
               R/CRIMINAL APPEAL NO. 361 of 2024
                            With
              R/CRIMINAL APPEAL NO. 361 of 2024
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                MOHAMMADHANIF AZAMMIYA MALEK
                             Versus
          VAHORA MAKSUDBHAI GANIBHAI (KAPADIYA TRAVELS)
==========================================================
Appearance:
A S TIMBALIA(7372) for the Applicant(s) No. 1
A N KADRI(7990) for the Respondent(s) No. 1
MS.M.H.BHATT, APP for the Respondent(s) No. 2
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                            Date : 13/02/2024

                             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, Mahudha dated 01.08.2023 in Criminal Case No. 29 of 2020.

2. Heard, learned advocate appearing for the applicant and perused the impugned judgment and order of the trial Court.

3 Mr.A.S.Timbalia, learned advocate for the applicant submits the bare defence of the respondent-accused with regard to misusing the cheque and procuring the same

NEUTRAL CITATION

R/CR.MA/2810/2024 ORDER DATED: 13/02/2024

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cheque from the sister who is staying in the Umreth is accepted by the learned trial Court. Learned advocate submits that to rebut the presumption, the evidence which may be in the nature of preponderance of the probability is to be proved by the respondent-accused and accused has to bring the facts on record and circumstances which may lead Court to conclude either that consideration did not exist or its non-

existence was so probable that a prudent man would under circumstances of the case, act upon plea that consideration did not exist. Learned advocate submits that not a single evidence or the circumstances prove to connect the sister with the complainant so that cheque can be procured from the sister and same can be misused as per the defence of the respondent-accused. Learned advocate submits that the learned trial Court disbelieved the case of the complainant relying on the cross-examination wherein, the complainant had admitted that he does not have any document to show that luxury bus was purchased and thereafter, return to the respondent-accused and to repay the amount of consideration the disputed issue. Learned advocate submits that after proving the prima facie case against the respondent-accused onus would shift on the respondent-accused to rebut the presumption and in failing to do so, learned trial Court had committed grave error in acquitting the respondent-accused.

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

NEUTRAL CITATION

R/CR.MA/2810/2024 ORDER DATED: 13/02/2024

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granted. This application is allowed.

Order in Criminal Appeal:

1. Appeal is admitted. Ms.M.H.Bhatt, learned APP waives service of notice of admission on behalf of respondent No.2-

State. Mr. A.N.Kadri, learned advocate waives service of notice of admission on behalf of respondent No.1.

2. Record and proceedings be called for from the concerned court.

3. List this matter in seria tim.

(M. K. THAKKER,J) BEENA SHAH