Gujarat High Court
Nagajan Devabhai Khunti vs State Of Gujarat on 24 January, 2024
NEUTRAL CITATION
R/CR.MA/1514/2024 ORDER DATED: 24/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 1514 of
2024
In R/CRIMINAL APPEAL NO. 214 of 2024
With
R/CRIMINAL APPEAL NO. 214 of 2024
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NAGAJAN DEVABHAI KHUNTI
Versus
STATE OF GUJARAT
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Appearance:
MR CHINTAN S POPAT(5004) for the Applicant(s) No. 1
JAGDISH M MOTIVARAS(9047) for the Respondent(s) No. 2
MS KIRAN R UDASI(12127) 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 : 24/01/2024
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
10.08.2023 passed by the learned Chief Judicial Magistrate,
Porbandar in Criminal Case No.312 of 2019.
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R/CR.MA/1514/2024 ORDER DATED: 24/01/2024
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2. Heard, Mr. Chintan Popat, learned advocate appearing
for the applicant - original complainant and perused the
impugned judgment and order of the trial Court.
3. Mr. Chintan Popat, learned advocate appearing for the
applicant - original complainant submits that though the
presumption, which is in favour of the complainant, is not
rebutted and the respondent - accused had not denied the
signature on the cheque nor the signature on Exh.36 - written
agreement, the learned trial Court had acquitted the
respondent - accused. Learned advocate has drawn the
attention of this Court with regard to the reasons assigned by
the learned trial Court for acquitting the respondent -
accused, wherein, the learned trial Court comes to the
conclusion that the complainant did not prove his financial
capacity to lend the amount and remain failed in proving that
the cheque was issued to discharge his liability. Learned
advocate submits that the demand notice, which was issued,
was not replied by the respondent - accused thought it is
served and with regard to the service of notice, the
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R/CR.MA/1514/2024 ORDER DATED: 24/01/2024
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acknowledgment receipt below Exh.31 and tracking
consignment copy below Exh.32 were produced by the
complainant. Learned advocate submits that the complainant
from the very inception stated that he is doing the agricultural
work, however, for not producing the copy of supporting
documents, would not absolve the respondent - accused from
discharging the liabilities towards the cheque. Learned
advocate submits that the conclusion made by the learned
trial court that no any evidence was produced with regard to
the source of income would led to the acquittal of the
respondent - accused, is against the previsions when the
signature on the cheque is not disputed neither signature on
the written agreement is disputed for not proving the source
of income, it cannot be concluded that the respondent had not
issued cheque for discharging of legally enforceable debt.
Therefore, the learned advocate prays to grant the application
seeking leave to prefer an appeal.
4. Considering the avernments made in the application and
submissions made by the learned advocate appearing for the
applicant, this Court finds that there is some arguable case in
NEUTRAL CITATION
R/CR.MA/1514/2024 ORDER DATED: 24/01/2024
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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 and Mr.
Jagdish Motivaras, learned advocate waives service of notice
of admission on behalf of respondent - accused.
2. 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
