Gujarat High Court
Parmar Hitendrasinh Pratapsinh vs State Of Gujarat on 30 January, 2024
NEUTRAL CITATION
R/CR.MA/18259/2023 ORDER DATED: 30/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 18259
of 2023
In R/CRIMINAL APPEAL NO. 246 of 2024
With
R/CRIMINAL APPEAL NO. 246 of 2024
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PARMAR HITENDRASINH PRATAPSINH
Versus
STATE OF GUJARAT
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Appearance:
MR JM BAROT(143) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MONALI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 30/01/2024
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 Additional Civil Judge and Judicial Magistrate First
Class, Vijapur dated 28.08.2023 in Criminal Case No.3766 of
2021.
2. Heard the learned advocate appearing for the applicant -
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R/CR.MA/18259/2023 ORDER DATED: 30/01/2024
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original complainant and perused the impugned judgment and
order of the trial Court.
3. Learned advocate submits that under Section 118 of the
Negotiable Instrument Act, the presumption which is in favour
of the complainant is provided 'until the contrary is proved'
and under Section 139, the presumption is provided 'unless
the contrary is proved' that the holder of the cheque has
received the cheque for discharge of the legally enforceable
debt or the liability. The learned advocate submits that bare
defense of the respondent - accused with regard to the
cheque, which was issued towards the security, was accepted
without proving the same either during the cross-examination
or by leading the evidence. The learned advocate has drawn
the attention of this Court with regard to the cross-examination
wherein, the suggestion, which was put by the respondent -
accused that the disputed cheque was issued towards the
transaction of purchasing the flat, was denied by the
complainant. The learned advocate submits that the judgment
and order of the acquittal was passed only on the basis that
the amount, which is lent has not been shown in the Income
Tax returns. The learned advocate further submits that though
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R/CR.MA/18259/2023 ORDER DATED: 30/01/2024
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the financial capacity was not challenged by the respondent -
accused either in the reply to the demand notice or in the
statement recorded under Section 313, the learned trial Court
had passed the judgment and order of acquittal by holding that
the complainant is not financially capable for lending the
amount. The learned advocate submits that except cross-
examining the complainant, no any evidence was led to prove
the defense and even in the cross-examination also, there was
no any circumstances created showing the probable defense of
the respondent - accused. The learned advocate submits that
without any cogent reason, the judgment and order of
acquittal is passed.
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
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R/CR.MA/18259/2023 ORDER DATED: 30/01/2024
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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
