Gujarat High Court
Vinubhai Laxmanbhai Baria vs Rameshbhai Raiyabhai Lakhtariya ... on 2 April, 2025
NEUTRAL CITATION
R/CR.MA/4520/2025 ORDER DATED: 02/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 4520 of
2025
In F/CRIMINAL APPEAL NO. 42840 of 2024
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VINUBHAI LAXMANBHAI BARIA
Versus
RAMESHBHAI RAIYABHAI LAKHTARIYA (PATEL) & ANR.
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Appearance:
MR VIJAY N RAVAL(2025) for the Applicant(s) No. 1
MS. DHWANI TRIPATHI, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 02/04/2025
ORAL ORDER
1. The present application is filed by the applicant - original complainant under Section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as "the BNSS") seeking leave to appeal against the judgment and order dated 05.09.2024 passed by the learned 5th Additional Sessions Judge, Panchmahals at Godhara acquitting the respondent No. 1 in Criminal Appeal No. 74 of 2024 filed by the respondent No. 1 challenging the judgment and order of conviction passed by the learned Chief Judicial Magistrate, Panchmahals at Godhara ( hereinafter referred to as "the learned Trial Court) in Criminal Case No. 1288 of 2018 for the offence under Section 138 of the Negotiable Instrument Act, 1881. (hereinafter referred to as the NI Act).
Page 1 of 5 Uploaded by VISHAL MISHRA(HC01088) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:14:01 IST 2025 NEUTRAL CITATION R/CR.MA/4520/2025 ORDER DATED: 02/04/2025 undefined 1.1 The respondent is hereinafter referred to as " the accused" as he
stood in the original case for the sake of convenience, clarity and brevity.
2. Heard learned advocate Mr. N.V.Raval for learned advocate Mr.V.N.Raval for learned advocate for the applicant and learned Additional Public Prosecutor Ms. Dhwani Tripathi for the respondent - State. Perused the judgments and orders of both the Courts.
3. Learned advocate Mr. N.V.Raval for learned advocate Mr. V.N.Raval appearing for the applicant submits that the applicant is a Civil Contractor and the respondent No. 1 was also doing the business construction in the name and style of Nagraj Infracon Pvt. Ltd. and the applicant and the respondent No. 1 had entered into contract to dig sand from the lake of Ubhed village of Kamrej Taluka as the respondent No. 1 had got the contract of constructing the road from Kamrej to Palsana cross-roads from four land to six lane in March, 2017 and the respondent No. 1 had agreed to construct a wall surrounding the lake. The contract was for an amount of Rs.15,16,794/-. That some amount was recovered and an amount of Rs.9,24,500/- was due towards which, the respondent No. 1 gave a cheque No. "808547" dated 01.01.2018 for an amount of Rs.9,00,000/- from his account with Canara Bank, Vapi Branch. The cheque was deposited by the applicant in his account with Baroda Gujarat Gramin Bank, Nadisar Branch, however, the cheque returned unpaid with Page 2 of 5 Uploaded by VISHAL MISHRA(HC01088) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:14:01 IST 2025 NEUTRAL CITATION R/CR.MA/4520/2025 ORDER DATED: 02/04/2025 undefined the endorsement " Funds Insufficient". The applicant gave demand statutory notice to the respondent No.1, which was duly served but the respondent No. 1 did not make any payment and hence, the complaint was filed by the applicant before the learned Chief Judicial Magistrate Panchmahals at Godhara which was registered as Criminal Case No. 1288 of 2018.
3.1 The summons were issued to the respondent No.1 which was duly served and after the respondent No. 1 appeared before the learned Trial Court, the entire evidence of the applicant and the respondent No. 1 was taken on record. The learned Trial Court was pleased to convict the respondent No. 1 for the offence under Section 138 of NI Act and sentence the respondent No. 1 to simple imprisonment for a period of one year and ordered the respondent No. 1 to pay Rs.9,00,000/- along with simple interest at the rate of 9% p.a. within a period of thirty days to the applicant from the date of the complaint under Section 357 of the Code of Criminal Procedure, 1973.
3.2 Being aggrieved and dissatisfied with the judgment and order of conviction, the respondent No. 1 filed Criminal Appeal No. 74 of 2024 before the Sessions Court, Panchmahals at Godhara and after the arguments of the learned advocates for both the parties were heard, the learned 5th Additional Sessions Judge, Panchmahals at Godhara was Page 3 of 5 Uploaded by VISHAL MISHRA(HC01088) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:14:01 IST 2025 NEUTRAL CITATION R/CR.MA/4520/2025 ORDER DATED: 02/04/2025 undefined pleased to allow the appeal and acquit the respondent No. 1 for the offence under Section 138 of the NI Act.
4. Learned advocate for the applicant submits that the applicant had produced all the documentary evidence and has also stepped into the witness box and had proved that the amount of Rs.9,00,000/- was the legally enforceable due from the respondent No. 1. The entire evidence on record was properly appreciated by the learned trial Court. The respondent No.1 did not file any reply to the notice and did not step into the witness box but has examined one witness and in his evidence, nothing to support the case of the respondent No. 1 has come on record. The learned 5th Additional Sessions Judge, Panchmahals at Godhara did not appreciate the evidence in proper perspective and by the impugned judgment and order has acquitted the respondent No. 1 mainly concluding that the presumption was successfully rebutted by the respondent No.1 and has passed the impugned judgment and order of acquittal. Learned advocate for the applicant submits that all the documents prove that there were business transaction between the parties and the amount was due towards which the cheque in question was given and the cheque was given towards a legally enforceable due and hence the application seeking leave to appeal must be granted.
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5. Learned APP Ms. Dhwani Tripathi for the respondent - State has submitted that the learned Sessions Court has appreciated all the evidence in proper perspective and no interference is required and hence the application for leave to appeal must be rejected.
6. Considering the arguments of the learned advocate for the applicant and on perusal of the judgment and order passed by the learned trial Court as well as learned 5th Additional Sessions Judge, Panchmahals at Godhara, prima facie, it appears that the same set of evidence is appreciated by the learned trial Court has well as learned Sessions Court in a different manner. The application seeking leave to appeal deserves consideration. Consequently, the same is allowed.
(S. V. PINTO,J) VVM Page 5 of 5 Uploaded by VISHAL MISHRA(HC01088) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:14:01 IST 2025