Gujarat High Court
Shaktavat Abhesinh Parbatsinh vs State Of Gujarat on 4 January, 2024
NEUTRAL CITATION
R/CR.MA/14976/2023 ORDER DATED: 04/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 14976
of 2023
In R/CRIMINAL APPEAL NO. 21 of 2024
With
R/CRIMINAL APPEAL NO. 21 of 2024
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SHAKTAVAT ABHESINH PARBATSINH
Versus
STATE OF GUJARAT
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Appearance:
MR NIKHIL S VYAS(5663) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MONALI H BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 04/01/2024
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 dated
03.08.2023 passed by the learned Presiding Officer, Special
N.I. Court, Ghee-kanta, Ahmedabad in Criminal Case
No.71181 of 2018.
NEUTRAL CITATION
R/CR.MA/14976/2023 ORDER DATED: 04/01/2024
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2. Heard, Mr. Nikhil Vyas learned advocate appearing for
the applicant - original complainant and perused the
impugned judgment and order of the trial Court.
3. Mr. Nikhil Vyas learned advocate appearing for the
applicant - original complainant submits that though the
presumption, which is in favour of the complainant under
Sections-118 and 139 of the N.I. Act, was not rebutted by the
respondent - accused by leading the circumstances or
producing the evidence, which may be in the nature of
preponderance of the probability, the learned trial Court had
acquitted the respondent - accused. Learned advocate further
submits that there was transaction between the complainant
and accused with regard to the purchase of the machinery and
against which, the complainant had made the payment.
However, subsequently, the machinery was not supplied and
therefore, to repay that amount, the disputed cheque was
issued. Learned advocate draws the attention of this Court
with regard to the observation made by the learned trial Court
that the payment, which was made for purchasing the
NEUTRAL CITATION
R/CR.MA/14976/2023 ORDER DATED: 04/01/2024
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machinery, was from the Nilkanth Chemical, which belongs to
the son of the complainant. Learned advocate relies on the
statement, which was produced below Exh.8 and submitted
that the account was joint account, wherein, the complainant
was also one of the account holder. Learned advocate further
draws attention of this Court with regard to the observation
made by the learned trial Court regarding the transaction,
which is of the 2013 - 2015 and for the repayment of the said
transaction, a cheque was issued in the year 2018. Learned
trial Court has observed that for the transaction of 2013 to
2015, a cheque, which is issued of forward date [i.e.post
dated] i.e. 2018 cannot be believed. Learned advocate submits
that though the respondent - accused had not disputed the
issuance of the cheque or signature on the cheque, the
learned trial Court had shifted the burden on the complainant
to prove the case without considering the fact that the
presumption was not rebutted by the respondent - accused.
Therefore, learned advocate prays to allow the present
application for seeking leave to prefer an appeal and admit
the criminal appeal.
NEUTRAL CITATION
R/CR.MA/14976/2023 ORDER DATED: 04/01/2024
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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. 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)
A. B. VAGHELA
