Kamla Traders Proprietor Kailashkumar ... vs State Of Gujarat
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Gujarat High Court

Kamla Traders Proprietor Kailashkumar ... vs State Of Gujarat on 31 January, 2024

                                                                                NEUTRAL CITATION




     R/CR.MA/1660/2024                           ORDER DATED: 31/01/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 1660 of
                            2024
                              In
               R/CRIMINAL APPEAL NO. 258 of 2024
                            With
              R/CRIMINAL APPEAL NO. 258 of 2024
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 KAMLA TRADERS PROPRIETOR KAILASHKUMAR GIRDHARILAL SHAH
                         Versus
                   STATE OF GUJARAT
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Appearance:
MR. JAY M THAKKAR(6677) for the Applicant(s) No. 1
MS. M.H.BHATT, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                           Date : 31/01/2024

                            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 2 nd Additional Chief Judicial Magistrate, Anand dated 14.7.2023 in Criminal Case No. 2897 of 2018.

2. Learned advocate Mr. Jay M. Thakkar for the applicant draws the attention of the Court with regard to observation made by the learned trial Court wherein, the learned trial Court comes to the conclusion that as complainant fails to produce the delivery challan

NEUTRAL CITATION

R/CR.MA/1660/2024 ORDER DATED: 31/01/2024

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showing that the goods is received by the respondent - accused, the respondent was acquitted from the charges. Learned advocate draws the attention of this Court with regard to the Exhibit-28 i.e. the reply to the demand notice. On perusing the said reply, there was no any defence which was raised by the respondent - accused with regard to the non receiving of the goods, only defence which was raised is that the cheque which was given towards the security was misused by the complainant. Learned advocate submits that signature on the cheque was not disputed by the respondent - accused neither the transaction was disputed. However, bare defence which was accepted by the learned trial Court without creating any circumstances, would not absolve the respondent-accused from the liability. Learned advocate submits that though the bills were produced below Exhibit-73 to 95 and the same was prove through the evidence of the complainant.

The same was discarded and judgment and order of acquittal was passed. Learned advocate submits that in the reply to the demand notice, stand was taken that amount of the bills were already paid in cash or through the account payee cheques from the Account of brother namely Kamlesh R. Parikh. However, no such defence was proved through examining the said Kamlesh Parikh nor through the bank's statement of the brother though not a single question was put during the cross-examination on the complainant which suggest the probable defence of the respondent - accused, judgment and order of acquittal was passed.

NEUTRAL CITATION

R/CR.MA/1660/2024 ORDER DATED: 31/01/2024

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3. In view of the above submissions, this Court finds that there is some arguable case, and therefore, leave to appeal is granted. Hence, application to prefer appeal is allowed

Order in Criminal Appeal:-

Appeal is admitted. Learned advocate Ms. Dixa U. Pandya for learned advocate Mr. Hiren S. Somaiya waives service of notice of admission on behalf of the respondent - accused.

Let Record and Proceedings be called for.

Matter be listed in seriatim.

(M. K. THAKKER,J) BEENA SHAH