PRASHANT KISHORBHAI SOJITRA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr. Mahesh Poojara, learned advocate for the applicant. From the record, it transpires that fresh notice issued by this Court by order dtd. 24/2/2023 was permitted to be served through RPAD, has been duly served upon respondent. However, respondent- accused has choose not to contest this application seeking leave to appeal.

(2.) Mr. Poojara learned advocate for the applicant has invited attention of this Court to the reasons recorded by the learned Magistrate while recording the order of acquittal. He has submitted that the respondent accused has raised two fold defence before the learned Magistrate. In his further statement recorded by the learned Magistrate, specific defence was raised by the accused that no notice was served upon him and no cheque was issued by him against any legal debt in favour of the complainant. Mr. Poojara, learned advocate for the applicant has sought permission of this Court to place on record the copy of the track report of postal department which is brought on record vide Exh.16. By referring to the aforesaid document, he has submitted that indisputably the notice has been addressed to the respondent accused at his residential address of Mumbai, Maharashtra. The track report goes to suggest that the notice dtd. 7/6/2017 was duly received by the respondent accused on 20/6/2017 and it was opened and dispatched back to Surat. It further transpires from the said document that the notice was delivered at the address of Varacha Road of respondent accused at Surat on 22/6/2017. He, therefore, submitted that the trial Court committed gross error by recording the finding that the notice was not served upon the respondent accused. He further submitted that even acknowledgment slip has been brought on record vide Exh.15. Mr. Poojara has further submitted that the respondent accused has failed to raise any probable defence and the learned Magistrate has unnecessary placed burden upon the complainant to prove the fact of money being given to the accused. He, therefore, urge this Court to grant leave to file appeal against the impugned order of acquittal.

(3.) Having considered the submissions made by the learned advocate for the applicant, prima facie, the Court finds that the track report produced on record indicates that notice sent at the address of Mumbai, Maharashtra as reflected in the statutory notice has been duly received by the respondent accused. Such facts get further corroboration from the document placed on record in the nature of registered post AD receipt Exh.15. The Court further finds that the Court is obliged to presume that the disputed cheque was made for consideration in view of the statutory presumption provided under Sec. 118 (a) of the Negotiable Instruments Act . According to Sec. 139 of the Negotiable Instruments Act, legal presumption is required to be drawn with regard to the fact that such cheque was issued for discharged of debt unless such presumption is rebutted by the accused by raising probable defence. Such presumption continues in favour of the complainant, leave to appeal requires consideration. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted. Order in Criminal Appeal. Admit. Mr. Hardik Mehta, learned Additional Public Prosecutor waives service of admission on behalf of the respondent State. Bailable warrant in sum of Rs.10,000.00 be issued against the respondent no.2. Registry is directed to call for the Record and Proceedings of the case from the concerned Court.