Gujarat High Court
Chaudhary Finance And Investment Pvt ... vs State Of Gujarat on 19 February, 2024
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R/CR.MA/5281/2023 ORDER DATED: 19/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 5281 of
2023
In R/CRIMINAL APPEAL NO. 702 of 2023
With
R/CRIMINAL APPEAL NO. 702 of 2023
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CHAUDHARY FINANCE AND INVESTMENT PVT LTD THRO AJAYKUMAR
RADHESHYAM TIWARI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
ANURAG R RATHOR(9315) for the Applicant(s) No. 1
MR AJJ H MURJANI(13356) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR ARJUNSINGH B CHAUHAN(11510) for the Respondent(s) No. 2
MS MONALI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 19/02/2024
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 Additional Chief Judicial Magistrate, Court No.17,
Surat dated 22.12.2022 in Criminal Case No.19140 of 2017.
2. Heard learned advocate appearing for the applicant -
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R/CR.MA/5281/2023 ORDER DATED: 19/02/2024
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original complainant and perused the impugned judgment and
order of the trial Court.
3. Learned advocate submits that though the amount which
is shown in the document i.e. the mortgage agreement without
possession wherein, the loan amount of Rs.2,50,000/- has been
shown and the statement of accounts, which is produced at
exh.46, the installment which is repaid has been mentioned
and for the remaining amount, the cheque which is in dispute,
for the amount of Rs.2,56,200/- was issued, the learned trial
Court did not believe the case of the complainant by believing
the bare defense with regard to the issuance of the cheque
towards the security. The learned advocate submits that the
trial Court has given much weightage to the discrepancies in
the cross-examination that on which date, the cheque was
issued, is not stated by the complainant and in the cheque, the
different pens were used for signature as well as for filling the
cheque. The learned advocate submits that though the
signature on the cheque was not disputed by the respondent -
accused nor the demand notice was replied, the learned trial
Court has acquitted the respondent - accused on believing the
defense of the respondent - accused without proving the same
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R/CR.MA/5281/2023 ORDER DATED: 19/02/2024
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by way of the evidence which may be in the nature of
preponderance of probabilities. The learned advocate submits
that the minor discrepancies were given much weightage while
acquitting the respondent - accused and, therefore, the same
is required to be interfered with and the appeal is required to
be admitted.
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. 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
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R/CR.MA/5281/2023 ORDER DATED: 19/02/2024
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court. Registry is directed to list the Criminal Appeal in
seriatim.
(M. K. THAKKER,J)
Hitesh
