Gujarat High Court
Jigneshkumar Ramanbhai Parmar vs Vipulkumar Ramanbhai Makvana on 25 January, 2024
NEUTRAL CITATION
R/CR.MA/10460/2023 ORDER DATED: 25/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 10460
of 2023
In R/CRIMINAL APPEAL NO. 1383 of 2023
With
R/CRIMINAL APPEAL NO. 1383 of 2023
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JIGNESHKUMAR RAMANBHAI PARMAR
Versus
VIPULKUMAR RAMANBHAI MAKVANA
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Appearance:
MR ANIK E SHAIKH(10873) for the Applicant(s) No. 1
JAGAT V PATEL(7480) 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 : 25/01/2024
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 3 rd
Additional Chief Judicial Magistrate, Nadiad dated 21.04.2023 in
Criminal Case No.1648 of 2020.
2. Heard learned advocate appearing for the applicant - original
complainant and perused the impugned judgment and order of the
trial Court.
3. Learned advocate submits that it is the case of the
complainant that the complainant came into contact with the
respondent - accused through Pareshbhai Dhanjibhai Parmar, who is
NEUTRAL CITATION
R/CR.MA/10460/2023 ORDER DATED: 25/01/2024
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the brother-in-law of the respondent - accused. It was conveyed by
said Pareshbhai that the respondent - accused is doing the business
of share market and if the amount would be invested, then the
complainant would get the huge return. Under the said trust, the
amount of Rs.3,50,000/- was invested and after making payment of
the interest for two months, payment was stopped. Notice was
issued on 17.10.2019 which was produced below Exh.26 and on
issuance of the notice, the respondent - accused had paid some
amount and thereafter, the impugned cheque was issued for the
amount of Rs.2 lacs on 10.08.2020. The learned advocate further
submits that the judgment and order of the learned trial Court was
passed on the ground that the part payment was made by the
respondent - accused in January, 2020 and, therefore, the amount
which is mentioned in the cheque is not legally enforceable debt
towards the complainant. The learned advocate submits that from
the beginning, the case of the complainant is that for two months,
interest was paid and thereafter, it was stopped, therefore, the
notice Exh.26 was issued. The learned advocate submits that the
learned trial Court erred in considering the said payment towards
the part payment as admittedly, that amount was paid in the month
of January, 2020 and the cheque was issued in the month of August,
2020. The learned advocate submits that though the learned trial
Court concluded that during recording of the statement under
Section 313, neither issuance of the cheque was disputed nor the
signature was disputed however, the learned trial Court concluded
the trial in favour of 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 there was no any part payment towards the disputed cheque,
therefore, the learned trial Court erred in arriving at conclusion on
facts.
NEUTRAL CITATION
R/CR.MA/10460/2023 ORDER DATED: 25/01/2024
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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. Learned advocate
Mr.Pratik Advani waives service of notice of admission on behalf of
the 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)
Hitesh
