Bhaveshbhai Mansukhbhai Gandhi vs Rakesh Dushyantbhai Shukal
2024 Latest Caselaw 843 Guj

Gujarat High Court

Bhaveshbhai Mansukhbhai Gandhi vs Rakesh Dushyantbhai Shukal on 31 January, 2024

                                                                                NEUTRAL CITATION




   R/CR.MA/16621/2023                              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. 16621
                             of 2023
              In R/CRIMINAL APPEAL NO. 259 of 2024
                              With
                R/CRIMINAL APPEAL NO. 259 of 2024
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BHAVESHBHAI MANSUKHBHAI GANDHI Versus RAKESH DUSHYANTBHAI SHUKAL ========================================================== Appearance:

MR JAY BAROT FOR MR HARDIK A DAVE(3764) for the Applicant(s) No. 1 MR VISHAL T. PATEL(6518) for the Respondent(s) No. 1 MS MONALI BHATT, ADDL.PUBLIC PROSECUTOR for the Respondent(s)

========================================================== CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER Date : 31/01/2024 ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 16621 of 2023

1. Learned advocate Mr.Jay Barot for the applicant submits

that though the demand notice was not replied neither

complied and though the signature on the cheque was

not disputed by the respondent-accused, the learned trial

Court has passed the judgment and order of the

acquittal. Learned advocate Mr.Mr.Jay Barot has read the

statement, which was recorded under Section 313 of the

Code of Criminal Procedure, 1973. wherein the defence

was taken that the cheque was issued for the payment of

the insurance premium of the brother and the

complainant is doing the business of Tata Insurance and

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R/CR.MA/16621/2023 ORDER DATED: 31/01/2024

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that cheque was misused.

2. Learned advocate Mr.Mr.Jay Barot has drawn the attention

of this Court with regard to the cross examination of the

complainant wherein not a single question was put with

regard to the defence which was stated in the further

statement. Learned advocate has also drawn the

attention of this Court with regard to the observations

made by the learned trial Court wherein the learned trial

Court has also admitted the business relations of the

complainant and the respondent-accused. The ledger

account which was produced by the complainant below

Exhibit 7 was also not rebutted by the respondent-

accused. Learned trial Court has discarded the evidence

of Exhibit 7 only on the ground that there was a

discrepancy in the amount.

3. Learned advocate Mr.Mr.Jay Barot submits that while

giving the acquittal, the learned trial Court has observed

that onus would not shift to anyone except the

complainant to prove his case. Learned advocate

Mr.Mr.Jay Barot submits that though presumption under

Sections 118 and 139 of the Negotiable Instruments Act,

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R/CR.MA/16621/2023 ORDER DATED: 31/01/2024

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1886 is in favour of the complainant with regard to the

issuance of the cheque for discharging his legally

enforceable debt and though said presumption is not

rebutted by the respondent-accused by creating probable

defence, the judgment and order of acquittal was passed.

4. Considering the submissions, this Court deems it fit to

allow this application for seeking leave to prefer an

appeal. Hence, present application is allowed. Leave to

prefer an appeal is granted. Rule is made absolute

accordingly.

ORDER IN R/CRIMINAL APPEAL NO. 259 of 2024

1. The appeal is admitted. Learned advocate Mr.Vishal Patel

waives service of notice of admission on behalf of

respondents-original accused. Learned APP waives

service of notice of admission on behalf of respondent-

State.

2. Record and Proceedings shall be called for. Matter be

listed in seriatim.

(M. K. THAKKER,J) M.M.MIRZA