Gujarat High Court
Shehbaz Samir Saiyed On Behalf Of ... vs State Of Gujarat on 11 January, 2024
NEUTRAL CITATION
R/CR.MA/20906/2023 ORDER DATED: 11/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 20906
of 2023
In R/CRIMINAL APPEAL NO. 108 of 2024
With
R/CRIMINAL APPEAL NO. 108 of 2024
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SHEHBAZ SAMIR SAIYED ON BEHALF OF GENERAL POLYTEX PRIVATE
LTD
Versus
STATE OF GUJARAT
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Appearance:
MR NAUMAN S QURESHI(10669) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS MONALI H. BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 11/01/2024
COMMON 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
13.01.2023 passed by the learned 9 th Additional Chief Judicial
Magistrate, Surat in Criminal Case No.38736 of 2018.
NEUTRAL CITATION
R/CR.MA/20906/2023 ORDER DATED: 11/01/2024
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2. Heard, Mr. Nauman Qureshi, learned advocate
appearing for the applicant - original complainant and
perused the impugned judgment and order of the trial Court.
3. Mr. Nauman Qureshi, learned advocate for the
applicant - appellant submits that the cheque in question,
which was produced below Exh.57 to 68 bears the signature
of the respondent no.1 as a Manager/Proprietor of the Vastra.
Learned advocate further submits that the respondent no.1
was joined as a party at the capacity of the Manager and the
respondent no.2 as a capacity of the owner in the complaint
and though the signature or the issuance of the cheque by the
respondent no.1 was not disputed in the defence, the
judgment and order of acquittal was passed. Learned
advocate further draws attention of this Court with regard to
the reasons assigned while acquitting the respondent -
accused by the learned trial Court that the complainant fails
to prove the case that whether the respondent no.1 was
authorized to sign in the capacity of the Manager of the
Proprietor. Learned advocate submits that in-fact, when the
issuance of the cheque and the signature was not disputed,
NEUTRAL CITATION
R/CR.MA/20906/2023 ORDER DATED: 11/01/2024
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the burden shifts on the accused to rebut the presumption
available under Sections-118 and 139 of the N.I. Act, which
the respondent - accused is failed to discharge. Learned
advocate further submits that there was no any defence raised
by the respondent - accused that why the cheque was issued,
however, the learned trial Court had acquitted the respondent
- accused on the ground that the complainant fails to prove
the case against the respondent - accused. Therefore, the
learned advocate prays to grant the leave to prefer an appeal
and admit the appeal.
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/20906/2023 ORDER DATED: 11/01/2024
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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. 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
