Gujarat High Court
Rajeshkumar Manilal Limbachiya vs State Of Gujarat on 8 April, 2025
NEUTRAL CITATION
R/CR.MA/24599/2024 ORDER DATED: 08/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 24599
of 2024
In F/CRIMINAL APPEAL NO. 47448 of 2024
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RAJESHKUMAR MANILAL LIMBACHIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR AMIT N PATEL(2749) for the Applicant(s) No. 1
MR ROHITKUMAR R SHARMA(12025) for the Respondent(s) No. 2
P C NAYAK(12520) for the Respondent(s) No. 2
MS. DHWANI TRIPATHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 08/04/2025
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 "BNSS"), seeking leave to appeal against the judgment and order dated 14.10.2024 passed by the Additional Judicial Magistrate First Class, Patan (hereinafter referred to as "the Trial Court"), granting the benefit of doubt and acquitting the respondent - accused - in Criminal Case No. 1313 of 2023, filed by the applicant for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the NI Act"). 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.
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2. The brief facts, as culled out from the memo of the present appeal as well as the record and proceedings, are as under:
2.1 The applicant had taken an amount of Rs. 8,00,000/- from the respondent through his relative. The said amount was given for a period of one year. Thereafter, when the amount was demanded, the respondent issued Cheque No. 000024 dated 21.03.2023 drawn on his account with Bank of Baroda, Patan Branch. The applicant deposited the said cheque into his account with Bank of Baroda, Patan Branch, however, it was returned unpaid with the endorsement "Funds Insufficient."
Subsequently, the applicant issued a statutory demand notice to the respondent No. 2, which was duly served. The respondent No. 2, however, gave an evasive reply and failed to repay the amount. The applicant filed a complaint under Section 138 of the NI Act before the learned Chief Judicial Magistrate, Patan, which was registered as Criminal Case No. 1313 of 2023.
2.2 After the appearance of the respondent No. 2 and recording of his plea, the applicant has produced oral and documentary evidence on record and upon closure of the evidence of the applicant, the further statement of the respondent No. 2 under Section 313 of the Cr.P.C. was recorded. The respondent stepped into the witness box, deposed on oath, Page 2 of 5 Uploaded by VISHAL MISHRA(HC01088) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 23:34:38 IST 2025 NEUTRAL CITATION R/CR.MA/24599/2024 ORDER DATED: 08/04/2025 undefined and examined eight witnesses on his behalf. However, no documentary evidence was produced by the respondent. After hearing the arguments of the learned advocates for both sides, the learned Additional Judicial Magistrate First Class, Patan, extended the benefit of doubt to the respondent and, by the impugned judgment and order dated 14.10.2024 under Section 255 of the Code of Criminal Procedure, 1973, acquitted him of the offence.
3. Heard learned advocate Mr. Amit N. Patel for the applicant, learned advocate Mr. Rohitkumar R. Sharma for the respondent, and learned Additional Public Prosecutor Ms. Dhwani Tripathi for the respondent-State. Perused the judgment and order passed by the learned Trial Court.
4. Learned advocate Mr. Amit N. Patel for the applicant submitted that the applicant had produced all relevant documents and had proved the existence of a legally enforceable debt. The promissory note executed by the respondent No. 2 clearly admitted the borrowing of Rs. 8,00,000/- for one year and it stated that the amount would repay by 04.10.2022. In his reply to the statutory notice produced on record, the respondent No. 2 has stated the loan in installments with 3.5% interest has been repaid. However, the defense taken by the respondent No. 2 als was that the Page 3 of 5 Uploaded by VISHAL MISHRA(HC01088) on Wed Apr 09 2025 Downloaded on : Wed Apr 09 23:34:38 IST 2025 NEUTRAL CITATION R/CR.MA/24599/2024 ORDER DATED: 08/04/2025 undefined amount was borrowed by his partner but the said fact was contrary to the facts stated in the reply to the notice. Moreover, in the entire evidence, there is no evidence produced on record to show that the amount was paid back in installments and if any amount is paid, the documentary evidence to that effect would have been produced on record. Learned advocate for the applicant has submitted that the applicant has a good case on merits and hence, the application seeking leave to appeal must be granted.
5. Learned advocate Mr. R.R. Sharma for the respondent No. 2 submitted that the cheque in question was never deposited by the applicant and the return memo does not bear the signature of the Bank Manager and the same is forged. This issue was raised before the learned Trial Court but the learned Trial Court has not considered the same. It was further submitted that the stamp paper used for the promissory note was not purchased by the respondent No. 2 and evidence to this effect was submitted but the learned Trial Court has also not considered the same. Thus, the application for leave to appeal must be be rejected.
6. Learned Additional Public Prosecutor Ms. Dhwani Tripathi for the respondent-State has submitted that the learned Trial Court has appreciated all the evidence placed on record, and therefore, the application seeking leave to appeal must be rejected.
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7. Considering the submissions of the learned advocates for the respective parties, as well as the learned Additional Public Prosecutor, prima facie it appears that the promissory note was executed by the respondent No. 2, admitting a hand loan of Rs. 8,00,000/- for a period of one year, and the same would be repaid by 04.10.2022. In the reply to the statutory notice, the respondent No. 2 has stated that his partner had taken the said amount for purchasing an office and without his knowledge or consent, he left the partnership firm, and the entire responsibilities was thrown upon him. The respondent No. 2 has further submitted that the amount was borrowed with interest at the rate of 3.5% and the Cheque No. 000024, drawn on Bank of Baroda, Patan Branch, was issued as a security and the same was misused by the applicant. Considering the oral and documentary evidence on record, the issue requires consideration as prima facie, it appears that the evidence has not been appreciated by the learned Trial Court is proper perspective. Consequently, the application seeking leave to appeal is allowed.
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