Gujarat High Court
Prajapati Poojaben Dineshbhai vs Kherada Mustufa Rahimbhai on 23 January, 2024
NEUTRAL CITATION
R/CR.MA/18186/2023 ORDER DATED: 23/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 18186
of 2023
In R/CRIMINAL APPEAL NO. 199 of 2024
With
R/CRIMINAL APPEAL NO. 199 of 2024
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PRAJAPATI POOJABEN DINESHBHAI
Versus
KHERADA MUSTUFA RAHIMBHAI
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Appearance:
G P DEVMORARI(7419) for the Applicant(s) No. 1
MR PA DEVMORARI(2829) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS MONALI BHATT APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 23/01/2024
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 21.07.2023 passed by the
learned Additional Chief Judicial Magistrate, Sanand, Ahmedabad in
Criminal Case No.2426 of 2021.
2. Heard, learned advocates appearing for respective parties and
perused the impugned judgment and order of the trial Court.
3. Learned advocate Mr.G.P. Devmorari for the applicant has
drawn the attention of this Court with regard to the cross-
examination of the complainant wherein, the complainant had
admitted the fact that some of the payments were made through
NEUTRAL CITATION
R/CR.MA/18186/2023 ORDER DATED: 23/01/2024
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the google pay. However, it is clarified in cross-examination that it
was with regard to repayment of the employees, who are working
under the complainant. It is the case of the complainant that the
complainant was working in the office of the Chholamandalam
General Insurance Co. and the accused was the branch manager of
the said office. The premium which was collected in cash, was to be
paid in the account of the insurance company i.e. Chholamandalam
General Insurance Co. Though, in the cross-examination, it was
clarified by the complainant that the amount which was received,
that was with regard to the payment of the insurance company, the
learned trial Court had acquitted the respondent - accused on the
ground that in the cross-examination, the complainant had admitted
the repayment of the amount i.e. Rs.17,000/- on 09.01.2021 and
Rs.17,000/- on 02.03.2017. It is the case of the complainant that the
disputed cheque was issued on 30.06.2020 and, therefore, even if
for the sake of argument if it is accepted that the amount is paid
but, admittedly, not after issuance of the cheque. The learned
advocate submits that after the cross-examination, the respondent -
accused remained absent and for that reason, further statement
under Section 313 was also not recorded. The learned advocate
submits that though the demand notice was not replied nor the
signature in the cheque was disputed, the learned trial Court had
acquitted the respondent - accused by holding that the respondent
- accused had successfully rebutted the presumption, which is in
favour of the complainant. The learned advocate submits that the
accused had not proved his defense by leading evidence which may
in standards of preponderance of probability, then also, the learned
trial Court acquitted the respondent - accused without any cogent
reason.
4. Considering the avernments made in the application and
submissions made by the learned advocates appearing for the
NEUTRAL CITATION
R/CR.MA/18186/2023 ORDER DATED: 23/01/2024
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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
