Gujarat High Court
Denishbhai Jaysukhbhai Mehta Thro Poa ... vs State Of Gujarat on 9 April, 2025
NEUTRAL CITATION
R/CR.MA/466/2025 ORDER DATED: 09/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 466 of
2025
In F/CRIMINAL APPEAL NO. 547 of 2025
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DENISHBHAI JAYSUKHBHAI MEHTA THRO POA KIRANSINH
GHANSHYAMSINH CHUDASMA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR RATHIN P RAVAL(5013) for the Applicant(s) No. 1
NOTICE SERVED 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 : 09/04/2025
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 16.10.2024 passed by the learned Additional Chief Judicial Magistrate, Gondal (hereinafter referred to as "the Trial Court"), acquitting the respondent - accused in Criminal Case No. 1801 of 2019 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 Page 1 of 5 Uploaded by VISHAL MISHRA(HC01088) on Wed Apr 09 2025 Downloaded on : Thu Apr 10 01:03:09 IST 2025 NEUTRAL CITATION R/CR.MA/466/2025 ORDER DATED: 09/04/2025 undefined brevity.
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 and the respondent No. 2 were known to each other and the respondent No. 2 was in need of financial assistance and the applicant had given an amount of Rs.1,90,000/- to the respondent No. 2 and a promissory note was executed between them and the respondent No. 2 gave a cheque No. 386003 for Rs.1,90,000/- from her account with State of Bank of India, Janana Hospital, Hospital Chowk, Javahar Road Branch, Rajkot. The applicant deposited the said cheque in his account with Gondal Nagarik Sahakari Bank Limited. However, the said cheque was returned unpaid with the endorsement "Exceeds Arrangement". The applicant sent the demand statutory notice to the respondent No. 2 which was duly served to the respondent No. 2 but the respondent No. 2 did not send any reply and did not repay the amount and hence, the applicant filed the complaint under Section 138 of the NI Act, before the Court of Additional Chief Judicial Magistrate, Gondal, which came to be registered as Criminal Case No. 1801 of 2019.
2.2 The respondent No. 2 was duly served with the summons and the affidavit of examination in chief of the applicant was produced on record. Page 2 of 5 Uploaded by VISHAL MISHRA(HC01088) on Wed Apr 09 2025 Downloaded on : Thu Apr 10 01:03:09 IST 2025
NEUTRAL CITATION R/CR.MA/466/2025 ORDER DATED: 09/04/2025 undefined The applicant did not appear before the learned Trial Court and hence, the learned Trial Court issued bailable warrant and even though the bailable warrant was served the respondent No. 2 did not appear. A non-bailable warrant was issued to the respondent No. 2 but the same was not served to the respondent No. 2 and the respondent No. 2 had succeeded in avoiding service Learned advocate for the applicant submits that if the copy of the Rojkam is be seen, it would appear that the matter was pending for service of non-bailable warrant and thereafter on 15.03.2023, the respondent No. 2 appeared and filed an application at Exh. 19 to stay the execution of the Non-bailable warrant, which was allowed. Thereafter, once again the respondent No. 2 stopped appearing before the learned Trial Court and even though the affidavit of examination in chief and the evidence of the applicant was on record, the respondent No. 2 consistently remained absent and was successful in delaying the trial. Learned Trial Court by the impugned order dated 16.10.2024 without appreciation of the evidence produced on record, was pleased to dismiss the complaint under Section 256 of the Code of Criminal Procedure, 1973 and acquit the respondent No. 2 from the offence under Section 138 of the NI Act.
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3. Heard learned advocate Mr. Rathin Raval for the applicant 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. Rathin Raval for the applicant submits that the affidavit of examination in chief of the applicant was on record and bailable and non bailable warrants were issued upon the respondent No. 2 and the respondent No. 2 had succeeded in avoiding service and if the copy of the rojkam is perused the respondent No. 2 consistently remained absent and was successfully in delaying the trial. Learned advocate for the applicant submits that the applicant has a good case on merits and hence, the application seeking leave to appeal must be granted.
5. Learned Additional Public Prosecutor Ms. Dhwani Tripathi for the respondent-State has submitted that necessary orders may be passed considering the copy of the Rojkam on record.
6. Considering the submissions of the learned advocate for the applicant as well as the learned Additional Public Prosecutor as also the copy of the Rojkam, prima facie it appears that the learned Trial Court has not considered the oral as well as documentary evidence produced on record by the applicant in proper perspective and has passed the Page 4 of 5 Uploaded by VISHAL MISHRA(HC01088) on Wed Apr 09 2025 Downloaded on : Thu Apr 10 01:03:09 IST 2025 NEUTRAL CITATION R/CR.MA/466/2025 ORDER DATED: 09/04/2025 undefined impugned order under Section 256 of the Code of Criminal Procedure Code, and hence, the issue requires consideration. Consequently, the application seeking leave to appeal is allowed.
(S. V. PINTO,J) VVM Page 5 of 5 Uploaded by VISHAL MISHRA(HC01088) on Wed Apr 09 2025 Downloaded on : Thu Apr 10 01:03:09 IST 2025