Chetanbhai Dharamshibhai Desai ... vs State Of Gujarat
2024 Latest Caselaw 227 Guj

Gujarat High Court

Chetanbhai Dharamshibhai Desai ... vs State Of Gujarat on 9 January, 2024

                                                                                 NEUTRAL CITATION




     R/CR.MA/15529/2023                          ORDER DATED: 09/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 15529
                            of 2023
              In R/CRIMINAL APPEAL NO. 83 of 2024
                             With
               R/CRIMINAL APPEAL NO. 83 of 2024
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CHETANBHAI DHARAMSHIBHAI DESAI PROPRIETOR OF BABA AGENCY
                         AMRELI
                         Versus
                   STATE OF GUJARAT
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Appearance:
MR RATHIN P RAVAL(5013) for the Applicant(s) No. 1
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 : 09/01/2024
                   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, passed by the learned 2 nd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Amreli dated 12.07.2023 in Criminal Case No.1236 of 2018.

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

3. Learned advocate Mr.Rathin Raval submits that debt denied by the respondent - accused in plea and also in the notice below Exh.31, which was believed by the learned trial Court without asking further proof for the same. The learned advocate submits that the suggestion, which was put by the defense with regard to the issuance of cheque by the son of the accused i.e. Ashwinbhai, was

NEUTRAL CITATION

R/CR.MA/15529/2023 ORDER DATED: 09/01/2024

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denied by the complainant in his cross-examination. The learned advocate further submits that in the cross-examination, the complainant had admitted that the business was done with Ashwinbhai and not with Maganbhai but, that aspect would not falsify the case of the complainant, as, as per Section 138 of the Negotiable Instruments Act, even if the cheque was issued to discharge any debt or other liability then also, the accused can be convicted under the Negotiable Instruments Act. The learned advocate further submits that the though the presumption, which is in favour of the complainant, was not rebutted by the respondent -

accused, the learned trial Court had shifted the onus of proof to the complainant to prove the case which is against the settled principles of law.

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) Hitesh