RUPABHARATHI CHAMANBHARATHI BAWA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr. Janak Vardey, learned advocate for the applicant - original complainant. Issue Rule, making it returnable forthwith. Ms. Shah, learned Additional Public Prosecutor waives service of Rule on behalf of the Respondent State.

(2.) This is an application filed under Sec. 378(4) of the Code of Criminal Procedure seeking leave to appeal against the impugned judgment and order of acquittal dtd. 13/3/2023 passed by the learned 4th Additional Chief Judicial Magistrate, First Class, Deesa in Criminal Case No.2347 of 2021. By the said judgment and order, the learned Magistrate has recorded acquittal of respondent no.2 for the offences punishable under Sec. 138 of the Negotiable Instruments Act, 1881.

(3.) Mr. Janak Vardey, learned advocate for the applicant has invited attention of this Court to the findings and reasons recorded by the learned Magistrate while recording order of acquittal. He has invited attention of this Court to the oral arguments of the learned advocate for the accused and has further drawn attention of this Court to the cross-examination of the complainant. He has submitted that the learned trial Court has relied upon the false submission made by accused wherein accused has tried to raise case that the applicant had transferred amount of Rs.5.00 lakhs in the Bank Account of one Yogeshbhai Solanki and the said Yogeshbhai Solanki has withdrawn said amount. Hence, it was contended that no transaction existed with accused. Resultantly, the learned Magistrate has accepted the aforesaid doubt raised by the accused. He has further submitted that the learned Magistrate ought to have drawn presumption in favour of complainant about existence of legally enforceable debt against the accused when no defence had come on record on the side of the accused. He, therefore, urge this Court to grant leave to appeal.