Gujarat High Court
Laljibhai Shivabhai Tikariya vs State Of Gujarat on 23 January, 2024
NEUTRAL CITATION
R/CR.MA/22540/2023 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. 22540
of 2023
In R/CRIMINAL APPEAL NO. 201 of 2024
With
R/CRIMINAL APPEAL NO. 201 of 2024
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LALJIBHAI SHIVABHAI TIKARIYA
Versus
STATE OF GUJARAT
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Appearance:
MR JK PARMAR(587) 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 : 23/01/2024
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
18.10.2023 passed by the learned 3 rd Additional Chief Judicial
Magistrate, Surendranagar in Criminal Case No.677 of 2022.
NEUTRAL CITATION
R/CR.MA/22540/2023 ORDER DATED: 23/01/2024
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2. Heard, Mr. J.K. Parmar, learned advocate appearing for
the applicant - original complainant and perused the
impugned judgment and order of the trial Court.
3. Mr. J.K. Parmar, learned advocate appearing for the
applicant - original complainant submits that the agreement,
which was executed between the complainant and the
husband of the respondent - accused below Exh.23, wherein,
the admission with regard to the lending of money was made
by the husband and reference of three cheques issued from
the account of the wife was also made. Learned advocate
submits that though the signature on the cheque was not
disputed by the respondent - accused, neither any defence
was created by establishing the circumstances, the learned
trial Court has acquitted the respondent accused. Learned
advocate draws the attention of this Court with regard to the
cross-examination, wherein, the suggestion was made by the
respondent - accused that there is dispute between the
husband and wife and in connivance with the husband, a false
case was filed. Learned advocate further draws the attention
of this Court with regard to the reply to the demand notice,
NEUTRAL CITATION
R/CR.MA/22540/2023 ORDER DATED: 23/01/2024
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which was given by the respondent - accused below Exh.22,
wherein, the different stand was taken by the respondent -
accused that on depositing the cheque when it was
dishonoured, the husband and the complainant went to the
bank and an application for stop payment was made. Learned
advocate further submits that to prove this defence neither
the bank officer was examined nor any suggestion was put in
the cross-examination. In fact, the inconsistent version was
mentioned in the reply to the demand notice as well as in the
cross-examination. Learned advocate further submits that the
financial capacity, which was challenged, was proved by the
respondent - accused as he is having agricultural income and
for that, he had produced the revenue record at mark 25/1.
Learned advocate further submits that though the financial
capacity was not challenged at the first opportunity, i.e. the
reply to the demand notice, the learned trial Court has
believed the case of the respondent - accused and passed the
judgment and order of the acquittal.
4. Considering the avernments made in the application and
submissions made by the learned advocate for the applicant,
NEUTRAL CITATION
R/CR.MA/22540/2023 ORDER DATED: 23/01/2024
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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
