Gujarat High Court
Mohammed Zafar Ahmedbhai Harsolia vs Vikramsinh Surajmalsinh Zala on 6 February, 2024
NEUTRAL CITATION
R/CR.MA/22274/2023 ORDER DATED: 06/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 22274
of 2023
In
R/CRIMINAL APPEAL NO. 301 of 2024
With
R/CRIMINAL APPEAL NO. 301 of 2024
==========================================================
MOHAMMED ZAFAR AHMEDBHAI HARSOLIA
Versus
VIKRAMSINH SURAJMALSINH ZALA
==========================================================
Appearance:
MR HARSHIT S BHATT(12874) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS. M.H.BHATT, APP for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 06/02/2024
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 2nd Additional Chief Judicial Magistrate, Himmatnagar dated 16.10.2023 in Criminal Case No. 6719 of 2019.
2. Heard, learned advocates appearing for respective parties and perused the impugned judgment and order of the trial Court.Page 1 of 3 Downloaded on : Thu Feb 08 20:40:51 IST 2024
NEUTRAL CITATION R/CR.MA/22274/2023 ORDER DATED: 06/02/2024 undefined
3. Mr. Bhatt, learned advocate submits that the case of the complainant from the beginning is that initially for purchasing the plot the amount of Rs.4,50,000/- was paid in cash and the amount of Rs. 1,00,000/- was paid through the bank i.e. Indian Bank on 13 th February,2019. On enquiring after the payment made, complainant came into knowedge that there is no title clearance of the said plot and therefore, the amount was demanded back, for repayment of the aforesaid amount, the disputed cheque was issued. Learned advocate has relied on bank statement which is produced at Exh. 31 wherein, the withdrawal of the cash i.e. Rs.5,00,000/- was mentioned on 23rd October, 2018 and entry of cheque of Rs.1,00,000/- was reflected dated 13th February, 2019, wherein, account of the respondent- accused Vikramsingh amount is credited. Learned advocate submits that for discarding the aforesaid evidence, no reasons assigned by the learned trial Court only by observing that for 3 and 1/2 months, no inquiry with regard to the title clearance was made by the complainant. Learned advocate submits that bare defense with regard to the issuance of cheque for the payment of premium of LIC was believed by the learned trial Court, though in the cross-examination the suggestion to that effect was answer in negative form. Learned advocate submits that while acquiting the respondent-accused, learned trial Court observed that it is the duty of the complainant to inquire with regard to the title clearance before making payment which he fails to do and therefore the judgement and order of the acquittal was passed. Learned Page 2 of 3 Downloaded on : Thu Feb 08 20:40:51 IST 2024 NEUTRAL CITATION R/CR.MA/22274/2023 ORDER DATED: 06/02/2024 undefined advocate submits that in fact the banakhat which was executed between the parties was not produced as on giving the cheque, the respondent-accused had taken back that copy of the banakhat and therefore, the complainant did not possess the same. Learned trial Court has also not believed the case of the complainant and without rebutting the presumption which is in favour of the complainant by the respondent-accused, the judgement and order of the acquittal was 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. Appeal is admitted. Learned APP waives service of notice of admission on behalf of respondent No.1 - 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.
4. List this matter in seria tim.
(M. K. THAKKER,J) BEENA SHAH Page 3 of 3 Downloaded on : Thu Feb 08 20:40:51 IST 2024