Gujarat High Court
Nasirali Abdulsamad Ansari vs Ayubkhan Hamidkhan Pathan on 4 April, 2025
NEUTRAL CITATION
R/CR.MA/22973/2024 ORDER DATED: 04/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 22973
of 2024
In F/CRIMINAL APPEAL NO. 42019 of 2024
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NASIRALI ABDULSAMAD ANSARI
Versus
AYUBKHAN HAMIDKHAN PATHAN & ANR.
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Appearance:
MR.KARANSINH SOLANKI(6541) for the Applicant(s) No. 1
MR PRUTHVIRAJSINH V SOLANKI(10190) for the Respondent(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 : 04/04/2025
ORAL ORDER
1. The present application is filed by the applicant - original complainant under Section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS") seeking leave to file an appeal against the order dated 31.08.2024 passed by the Court of Additional Chief Judicial Magistrate, Kalol @ Panchmahal (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 66 of 2020, whereby the learned Trial Court has acquitted the respondent No.2 from the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'NI Act').
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2. The brief facts culled out from the memo of the present appeal as well as the record and proceedings are as under:-
2.1 The respondent No. 2 was duly served with the summons and appeared before the learned Trial Court and the plea of the respondent No. 2 was recorded at Exhibit 10. Learned advocate for the applicant produced all the evidence on record, but the learned Trial Court by an order dated 31.08.2024 was pleased to pass the order under Section 255 of the Code of Criminal Procedure, 1973 and acquit the respondent No. 2 from the offence under Section 138 of the NI Act.
3. Being aggrieved and dissatisfied by the impugned order, the applicant has preferred the present application seeking leave to file an appeal under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023.
4. Heard learned advocate Mr. Karansinh Solanki appearing for the applicant, learned APP Ms. Dhwani Tripathi for the respondent No. 2 -
State and learned advocate Mr. Purthvirajsinh Solanki for the respondent No.1.
5. Learned advocate Mr. Karansinh Solanki for the applicant submits that the applicant and the respondent No. 2 were friends and they had Page 2 of 6 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:46 IST 2025 NEUTRAL CITATION R/CR.MA/22973/2024 ORDER DATED: 04/04/2025 undefined agreed to invest Rs.50,000/- each and start the business of fisheries and to purchase a boat, the applicant had given an amount of Rs.3,00,000/- to the respondent No. 2. The applicant had borrowed an amount of Rs.1,90,000/- from his sister and father and the amount of Rs.1,10,000/- that was due from the business was set off in the loan and in all the amount of Rs.3,00,000/- was given to the respondent No. 2. Towards the said amount, the respondent No. 2 had given cheque No. 752294" dated 09.01.2020 for Rs.3,00,000/- from his account with State Bank of India, Kalol Branch which was duly deposited by the applicant in his account but the same returned unpaid with the endorsement "Funds Insufficient". The demand statutory notice was given which was duly served to the respondent No. 2 but an evasive reply was given and the amount was not repaid and hence, the complaint was filed under Section 138 of the N.I.Act before the Court of the Additional Chief Judicial Magistrate, Kalol @ Panchmahal, which was registered as Criminal Case No.66 of 2020. The respondent No.2 was duly served and appeared before the learned Trial Court and the entire evidence of the applicant was taken on record. Learned advocate for the applicant submits that, in fact, the applicant is named Ayubkhan Ahmedkhan Pathan and his father also bears the name of "Hamidkhan Pathan" but the learned Trial Court concluded that the notice was given to Ayubkhan Hamidkhan Pathan and Page 3 of 6 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:46 IST 2025 NEUTRAL CITATION R/CR.MA/22973/2024 ORDER DATED: 04/04/2025 undefined the person to whom the notice was given, was not the respondent No. 2 as it was the contention of the respondent No. 2 that his name is Ayubkhan Ahmedkhan Pathan. Learned advocate submits that if the address of the respondent No. 2 is perused, in the complaint as well as application seeking leave to appeal, the address is the same and the summons of the learned Trial as well as notice of this Court has been duly served to the respondent No. 2. The respondent No. 2 has faced the entire trial and has not come with any submission before the learned trial Court, at the outset, that he was not the person named in the complaint and was not residing at the place mentioned in the notice. Even on verifying the signature of the respondent No. 2 in the cheque and in other documents it is the same and merely because the notice was sent to "Ayubkhan Hamidkhan Pathan"
and not to "Ayubkhan Ahmedkhan Pathan", the learned Trial Court has passed the impugned judgment and order of acquittal. The learned advocate for the applicant has not appreciated the evidence in proper perspective and the application seeking leave to appeal must be granted.
6. Learned advocate Mr. Pruthvirajsinh Solanki for the respondent No.1 submits that in fact the applicant is named Ayubkhan Ahmedkhan Pathan and he has not been served with any statutory notice as required under Section 138 of the NI Act, and as the notice was not served, the Page 4 of 6 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:46 IST 2025 NEUTRAL CITATION R/CR.MA/22973/2024 ORDER DATED: 04/04/2025 undefined cognizance for the offence would not be taken by the learned Trial Court . The learned Trial Court has right appreciated this fact and has rightly passed the judgement and order and hence, the application seeking leave to appeal must be rejected.
7 Learned APP Ms. Dhwani Tripathi for the respondent No 2 - State has submitted that the learned Trial Court has appreciated the evidence and has passed the impugned judgment and order of acquittal and hence the application seeking leave to appeal must be rejected.
8. Considering the submissions made by the learned advocate for the applicant, as well as upon perusal of the paper book produced on record by the learned advocate, it prima facie appears that the statutory demand notice produced at Exhibit 28 was sent to Ayubkhan Hamidkhan Pathan, whereas the cheque produced at Exhibit 26 is signed by Ayubkhan Ahmedkhan Pathan. A perusal of the address mentioned in both the notice and the complaint reveals that it is the same. There is nothing on record to suggest that, upon service of summons to the respondent No. 2, any submission was made on his behalf stating that he is not the person summoned by the learned Trial Court to face the trial. Prima facie, there appears to be a discrepancy in the name of the father of respondent No. 2 and learned advocate for the applicant submits that the father of the Page 5 of 6 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:46:46 IST 2025 NEUTRAL CITATION R/CR.MA/22973/2024 ORDER DATED: 04/04/2025 undefined respondetn No. 2 is known by both names. The application seeking leave to appeal merits consideration, as the other documents on record have not been properly appreciated by the learned Trial Court. Hence, the application seeking leave to appeal deserves consideration. Consequently, the same is allowed.
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