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2022 Supreme(Online)(Guj) 3759
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL MISC. APPLICATION NO. 19887 of 2021 In R/CRIMINAL APPEAL NO. 1648 of 2021 With R/CRIMINAL APPEAL NO. 1648 of 2021 ======================================
PATEL DINESHBHAI JAYANTILAL Versus PATEL AMBALAL KANTIBHAI ======================================
Appearance:
MR PS PATEL(643) for the Applicant(s) No. 1 MS TRUSHA K PATEL(2434) for the Respondent(s) No. 1 MR. H. K. PATEL, APP for the Respondent(s) No. 2 ======================================
CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Date : 21/03/2022
ORAL ORDER
Order in Criminal Misc. Application :-
Rule returnable forthwith. Ms. Patel, learned advocate waives service of notice of rule on behalf of the respondent no.2 and Mr. Patel, learned APP waives service of notice on behalf of the respondent – State.
This is an application for leave to appeal filed under Section 378(4) of the Criminal Procedure Code, challenging the judgment and order dated 4th September, 2021 passed by the Chief Judicial Magistrate First Class, Kalol in Criminal Case no.1478 of 2018 whereby, the learned Magistrate was pleased to acquit the respondent – accused from the offence punishable under Section 138 of the Negotiable Instrument Act.
The leave to appeal application is vehemently objected by Ms. Trusha Patel, learned advocate for the respondent – accused on the ground that there was a compromise, which had arrived at between the parties after filing of the complaint and that compromise was concealed by the complainant and not placed before the Court and that aspect has been considered by the Court while deciding the case. It is also argued that besides the aspect of the compromise, which was though concealed by the complainant, the complainant has not been able to prove the legally enforciable debt against the accused in this case. As such there is no case of the applicant/appellant wherein leave to appeal can be granted.
Mr. P. S. Patel, learned advocate for the applicant submitted that the respondent – accused has not been able to raise a probable defence, which can create a doubt about the existence of legally enforceable debt against the present applicant. Moreover, it is also submitted that compromise which has arrived at between the parties the accused has not acted in the terms of the compromise and as such the compromise was not acted upon by the complainant.
It is submitted that considering the submissions of both the sides, perusing the judgment of the trial Court, it appears that there is an issue, which requires consideration and the applicant having an arguable case in his favour.
As such leave to appeal under Section 378(4) of the Criminal Procedure Code is granted. Rule made absolute to the aforesaid extent.
Order in Criminal Appeal :-
Admit. Mr. Patel, learned APP waives service of notice on behalf of the respondent – State, Ms. Trusha Patel, learned advocate waives service of notice of admission on behalf of the respondent.
(RAJENDRA M. SAREEN,J)
