Gujarat High Court
Guddi Ramniwas Latiyal vs State Of Gujarat on 14 February, 2024
NEUTRAL CITATION
R/CR.MA/2975/2024 ORDER DATED: 14/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 2975 of
2024
In R/CRIMINAL APPEAL NO. 375 of 2024
With
R/CRIMINAL APPEAL NO. 375 of 2024
==========================================================
GUDDI RAMNIWAS LATIYAL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR ANIRUDH N SUCHAK(10768) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MONALI BHATT APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 14/02/2024
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 10th Additional Chief Judicial Magistrate, Surat
dated 16.12.2023 in Criminal Case No.42018 of 2017.
2. Heard learned advocate appearing for the applicant -
original complainant and perused the impugned judgment and
NEUTRAL CITATION
R/CR.MA/2975/2024 ORDER DATED: 14/02/2024
undefined
order of the trial Court.
3. Learned advocate Mr.Anirudh Suchak submits that the
case of the prosecution regarding lending of the amount from
the joint account of the complainant and the husband was
proved through the evidence of the bank officer of the
respondent - accused, namely, Piyush Bhatt, who produced the
bank statement wherein, the entry crediting the amount of
Rs.2,25,000/- is transpired. The learned advocate submits that
the amount which was lent, was through the bank by issuing
three cheques in favour of the accused, totaling the amount of
Rs.2,25,000/- and out of the said amount of Rs.2,25,000/-,
Rs.1,25,000/- was repaid in part by the respondent - accused
and for the amount of Rs.1 lac, the disputed cheque was
issued. The learned advocate submits that the signature on the
cheque or issuance of the cheque was not disputed by the
respondent - accused. The learned advocate further submits
that by proving that the cheque was issued, the onus was
shifted on the respondent - accused to rebut the presumption
which is available under Sections 138, 139 and 118 of the
Negotiable Instruments Act. Once the said presumption is
drawn then to rebut the same, the accused has to create the
NEUTRAL CITATION
R/CR.MA/2975/2024 ORDER DATED: 14/02/2024
undefined
circumstances or to lead the evidence to dislodge the
presumption which is in favour of the complainant. Mere denial
or creation of the doubt would not amount to rebut the
presumption unless it would be proved by the evidence, which
may be in the standards of preponderance of probabilities. The
learned advocate submits that the learned trial Court had
committed error in holding that the complainant did not lead
any evidence to show that the cheque was issued to discharge
legally enforceable debt in absence of the evidence, which
may disclose the presumption in favour of the complainant.
The learned advocate submits that not a single evidence or the
circumstances created by the respondent - accused
suggesting that the cheque was issued for what purpose. The
learned advocate submits that despite the evidence which was
led by the complainant was not rebutted, the judgment and
order of acquittal was passed by the learned trial Court.
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.
NEUTRAL CITATION
R/CR.MA/2975/2024 ORDER DATED: 14/02/2024
undefined
ORDER IN CRIMINAL APPEAL:
1. The appeal is admitted. Learned APP 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 be called for from the concerned
court. Registry is directed to list the Criminal Appeal in
seriatim.
(M. K. THAKKER,J)
Hitesh
