Kevalkumar Sureshbhai Patel vs Mafatbhai Melabhai Rabari
2024 Latest Caselaw 5191 Guj

Gujarat High Court

Kevalkumar Sureshbhai Patel vs Mafatbhai Melabhai Rabari on 21 June, 2024

                                                                                 NEUTRAL CITATION




     R/CR.MA/9582/2023                             ORDER DATED: 21/06/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 9582 of
                            2023

                    In R/CRIMINAL APPEAL NO. 1249 of 2023

                                   With
                     R/CRIMINAL APPEAL NO. 1249 of 2023
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                      KEVALKUMAR SURESHBHAI PATEL
                                  Versus
                     MAFATBHAI MELABHAI RABARI & ANR.
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Appearance:
DR. HIREN S SOMAIYA(8031) for the Applicant(s) No. 1
MR VIJAY H NANGESH(3981) for the Respondent(s) No. 1
MR.JAY MEHTA, APP for the Respondent(s) No. 2
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 CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                              Date : 21/06/2024

                                ORAL ORDER

1. Learned advocate Mr.H.S.Somaiya submits that the

judgment and order of acquittal was passed by the

learned trial court merely on the ground that

complainant fails to establish the source of income

to lend the amount and he had shown unwillingness

to produce the bank statement as well as to examine

the wife, father-in-law and one Nileshbhai from

whom the complainant borrowed amount to lend the

accused.

NEUTRAL CITATION

R/CR.MA/9582/2023 ORDER DATED: 21/06/2024

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1.1. Learned advocate Mr.H.S.Somaiya submits that

though respondent-accused did not dispute the

signature nor the issuance of the cheque and fails to

dislodge the presumption in favour of the

complainant the learned trial court has shifted the

onus on the complainant to prove his case.

1.2. Learned advocate Mr.H.S.Somaiya further

submits that no probable defence was raised by the

respondent-accused with regard to the consideration

received. Learned trial court has committed error in

acquitting the respondent-accused.

1.3. Learned advocate Mr.H.S.Somaiya submits that

so far as non-examination of the wife and father-in-

law is concerned it is explained by the complainant

that father-in-law is suffering from various diseases.

Learned trial court has put much weightage to minor

discrepancies and acquitted the respondent-accused.

1.4. Learned advocate Mr.H.S.Somaiya submits that

though the presumption which is in favour of the

complainant was not rebutted by the respondent-

NEUTRAL CITATION

R/CR.MA/9582/2023 ORDER DATED: 21/06/2024

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accused, the judgment and order of acquittal was

passed by the learned trial court.

2. 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.

ORDER IN R/CRIMINAL APPEAL NO. 1249 of 2023

1. The appeal is admitted. Learned APP Mr.Jay Mehta

waives service of notice of admission on behalf of

respondent-State and Learned advocate Mr.Vijay

Nangesh waives service of notice of admission on

behalf of respondent-original accused.

2. Record and Proceedings shall be called for. Matter

be listed in seriatim.

(M. K. THAKKER,J) ARCHANA S. PILLAI