Gujarat High Court
Anand Agencies Thro Anand Pushkarrai ... vs State Of Gujarat on 10 January, 2024
NEUTRAL CITATION
R/CR.MA/15050/2023 ORDER DATED: 10/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 15050
of 2023
In R/CRIMINAL APPEAL NO. 97 of 2024
With
R/CRIMINAL APPEAL NO. 97 of 2024
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ANAND AGENCIES THRO ANAND PUSHKARRAI GOKANI THRO GOVIND
KHETABHAI RATHOD
Versus
STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1,2
MS MONALI BHATT APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 10/01/2024
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 Judicial
Magistrate First Class, Okhamandal dated 28.06.2023 in Criminal
Case No.54 of 2019.
2. Heard, learned advocates appearing for respective parties and
perused the impugned judgment and order of the trial Court.
3. Learned advocate P.P. Majmudar for the applicants submits
that though in the reply to the demand notice, the respondent -
accused had admitted the fact that the cheque was issued towards
the security as they were having the friendly relations, the learned
NEUTRAL CITATION
R/CR.MA/15050/2023 ORDER DATED: 10/01/2024
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trial Court had overlooked this evidence and acquitted the
respondent - accused. The learned advocate further draws the
attention to the said reply, which is part of the record below Exh.39
wherein, in para 9, it was stated that as per the notice given by the
accused, the accounts is with the client but, no any accounts were
provided along with the notice. The learned advocate submits that
the mis-interpretation of this sentence was made by the learned
trial Court and considering the cross-examination wherein, the
complainant had admitted that no such account was provided and it
was interpreted that though the accounts were demanded, it was
not given to the respondent - accused and therefore, the
respondent - accused had successfully rebutted the presumption.
The learned advocate draws the attention of this Court with regard
to the documents, which were part of the record in the nature of
form No.3CD produced below Exhs.40 and 41 and list of the debtors,
which is annexed with the said income tax documents wherein, the
name of the present applicant is reflected with the amount. The
learned advocate submits that though the presumption, which is in
favour of the complainant, was not rebutted by the respondent -
accused, the learned trial Court has acquitted the respondent -
accused.
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.
NEUTRAL CITATION
R/CR.MA/15050/2023 ORDER DATED: 10/01/2024
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2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees Five
Thousand only) against the respondent - original accused.
3. The Record and Proceedings be sent back to the concerned
Court so that the paper book can be prepared by the concerned
Court and be sent again to this Court.
(M. K. THAKKER,J)
Hitesh
