Gujarat High Court
Nagajan Devabhai Khunti vs State Of Gujarat on 25 January, 2024
NEUTRAL CITATION
R/CR.MA/1540/2024 ORDER DATED: 25/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 1540 of
2024
In R/CRIMINAL APPEAL NO. 227 of 2024
With
R/CRIMINAL APPEAL NO. 227 of 2024
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NAGAJAN DEVABHAI KHUNTI
Versus
STATE OF GUJARAT
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Appearance:
MR CHINTAN S POPAT(5004) for the Applicant(s) No. 1
JAGDISH M MOTIVARAS(9047) for the Respondent(s) No. 2
MS KIRAN R UDASI(12127) for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 25/01/2024
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 dated 10.08.2023 passed by the learned Chief Judicial Magistrate, Porbandar in Criminal Case No.311 of 2019. Page 1 of 4 Downloaded on : Thu Jan 25 20:52:09 IST 2024
NEUTRAL CITATION R/CR.MA/1540/2024 ORDER DATED: 25/01/2024 undefined
2. Heard, Mr. Chintan Popat, learned advocate appearing for the applicant - original complainant and perused the impugned judgment and order of the trial Court.
3. Mr. Chintan Popat, learned advocate appearing for the applicant - original complainant submits that though the presumption, which is in favour of the complainant, is not rebutted and the respondent - accused had not denied the signature on the cheque nor the signature on Exh.36 - written agreement, the learned trial Court had acquitted the respondent - accused. Learned advocate has drawn the attention of this Court with regard to the reasons assigned by the learned trial Court for acquitting the respondent - accused, wherein, the learned trial Court comes to the conclusion that the complainant did not prove his financial capacity to lend the amount and remain failed in proving that the cheque was issued to discharge his liability. Learned advocate submits that the demand notice, which was issued, was not replied by the respondent - accused thought it is served and with regard to the service of notice, the Page 2 of 4 Downloaded on : Thu Jan 25 20:52:09 IST 2024 NEUTRAL CITATION R/CR.MA/1540/2024 ORDER DATED: 25/01/2024 undefined acknowledgment receipt below Exh.31 and tracking consignment copy below Exh.32 were produced by the complainant. Learned advocate submits that the complainant from the very inception stated that he is doing the agricultural work, however, for not producing the copy of supporting documents, would not absolve the respondent - accused from discharging the liabilities towards the cheque. Learned advocate submits that the conclusion made by the learned trial court that no any evidence was produced with regard to the source of income would led to the acquittal of the respondent - accused, is against the previsions when the signature on the cheque is not disputed neither signature on the written agreement is disputed for not proving the source of income, it cannot be concluded that the respondent had not issued cheque for discharging of legally enforceable debt. Therefore, the learned advocate prays to grant the application seeking leave to prefer an appeal.
4. Considering the avernments made in the application and submissions made by the learned advocate appearing for the applicant, this Court finds that there is some arguable case in Page 3 of 4 Downloaded on : Thu Jan 25 20:52:09 IST 2024 NEUTRAL CITATION R/CR.MA/1540/2024 ORDER DATED: 25/01/2024 undefined 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 notice of admission on behalf of respondent - State and Mr. Jagdish Motivaras, learned advocate waives service of notice of admission on behalf of respondent - accused.
2. Record and proceedings be called for from the concerned court. Registry is directed to list the Criminal Appeal in seriatim.
(M. K. THAKKER,J) A. B. VAGHELA Page 4 of 4 Downloaded on : Thu Jan 25 20:52:09 IST 2024