The appellate court found the lower appellate court's reasons for acquittal inadequate, necessitating a remand for a fresh hearing.

JUDGEMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2289 of 2009 For Approval and Signature: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RAZAKBHAI AHMEDBHAI GANATRA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MS. MEGHNA PATEL, FOR MR ASHISH M DAGLI for Appellant(s) : 1, MS. C.M. SHAH, APP, for Opponent(s) : 1, MR PP MAJMUDAR for Opponent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 16/02/2012 ORAL JUDGMENT The appellant, original complainant, has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgement and order of acquittal passed by learned Additional Sessions Judge and 2/4 JUDGMENT Presiding Officer, Fast Track Court, Gondal at Dhoraji on 17.11.2007 in Criminal Appeal No. 18 of 2007 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short).

2. The complainant filed complaint under Section 138 of the Act against the respondent accused and his wife alleging that in all amount of Rs. 2,36,000/- was advanced to the respondent accused who agave cheques for repayment of the said amount. However, on presentation, the cheques returned unpaid on account of insufficient funds. Therefore, notice was served to the accused but the accused gave false and elusive reply and did not pay the unpaid amount of the cheques.

Therefore, complaint in the Court of learned Judicial Magistrate First Class at Dhoraji was filed against the respondent accused and it was registered as Criminal Case No. 233 of 2005. The trial Court after recording evidence, convicted the respondent accused but acquitted his wife Sherbanu Ali Mohammed Aghadi. Therefore, the convict preferred appeal No. 18 of 2007 in the Court of learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Gondal at Dhoraji. Learned lower appellate Judge after hearing learned advocates for the parties by the impugned judgement allowed the appeal and set aside the conviction passed by the trial Court. Being aggrieved by the said decision, the complainant has preferred this appeal.

3. I have heard learned advocate Ms. Meghna Patel for learned advocate Mr. Ashish Dagli for the appellant, learned advocate Mr. Majmudar for the respondent accused and learned A.P.P. Ms. C.M. Shah for the respondent State at length and in great detail. I have also perused the record and proceedings of the lower Court.

4. Learned advocate Ms. Meghna Patel submitted that 3/4 JUDGMENT the lower appellate Court did not assign cogent and convincing reasons for setting aside the conviction. She also submitted that the lower appellate Court did not consider the evidence produced before learned trial Court and by slipshod judgement set aside the conviction. Therefore, the impugned judgement is required to be set aside.

5. Learned advocate Mr. Majmudar for the respondent accused submitted that the lo