Gujarat High Court
Aslam Abdulaziz Kasmani vs State Of Gujarat on 11 April, 2025
NEUTRAL CITATION
R/CR.MA/5516/2025 ORDER DATED: 11/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 5516 of
2025
In F/CRIMINAL APPEAL NO. 9519 of 2025
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ASLAM ABDULAZIZ KASMANI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
DEV D PATEL(8264) for the Applicant(s) No. 1
MS. DHWANI TRIPATHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 11/04/2025
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 18.01.2025 passed by the Court of Chief Judicial Magistrate, Verval (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 731 of 2023, whereby the learned Trial Court has acquitted the respondent No.2 from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act').
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 applicant and the respondent No. 2 were known to each other and had also entered into the business transaction with each other. During Page 1 of 4 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 11 2025 Downloaded on : Sat Apr 12 02:10:23 IST 2025 NEUTRAL CITATION R/CR.MA/5516/2025 ORDER DATED: 11/04/2025 undefined their long association, they were also started a partnership for scrap and the respondent No. 2 was also engaged in the same business. The respondent No. 2 had borrowed the amount of Rs.4,60,000/- from the applicant towards which, cheque No. "000004" dated 02.03.2023 for Rs.3,60,000/- drawn from his account with HDFC Bank Veraval Branch was given to the applicant. The said cheque was deposited by the applicant in his account with Axis Bank, Veraval Branch but the same returned unpaid with the endorsement "Funds Insufficient". The demand statutory notice was given, which was duly served by the respondent No. 2 but the amount was not paid and no reply was filed and hence, the applicant filed the complaint under Section 138 of the N.I. Act before the Court of the Chief Judicial Magistrate, Gir Somnath @ Veraval, which came to be registered as Criminal Case No. 731 of 2023. 2.2 The respondent No. 2 was duly served and appeared before the learned Trial Court and after the plea of the respondent No. 2 was recorded, the entire evidence of the applicant was taken on record. The applicant has produced two oral evidence and ten documentary evidences and after the closing pursis was filed and the further statement of the respondent No. 2 under Section 313 of the Code of Criminal Procedure, 1973 was recorded, the respondent No. 2 examined one witness on his behalf. The respondent No. 2 did not produce any documentary evidence Page 2 of 4 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 11 2025 Downloaded on : Sat Apr 12 02:10:23 IST 2025 NEUTRAL CITATION R/CR.MA/5516/2025 ORDER DATED: 11/04/2025 undefined to support of his case. After the evidence was appreciated, the learned Chief Judicial Magistrate, Veraval, was pleased to pass the impugned judgment and order of acquittal and acquit the respondent No. 2 from the offence under Section 138 of the N.I.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. Dev D. Patel appearing for the applicant, learned APP Ms. Dhwani Tripathi for the respondent No. 2 -
State. Perused the impugned judgment and order passed by the learned trial Court.
5. Learned advocate Mr. Dev D. Patel for the applicant submits that in the further statement, the respondent No. 2 had admitted that he had taken the amount and it was his defense that he had repaid the amount to the applicant but there is no evidence produced by him as to when and in what manner, the amount was repaid. Learned advocate for the applicant submits that the learned Trial Court has not appreciated the evidence properly and merely because a criminal case was filed against the applicant, the learned Trial Court has considered that the legally enforceable debt was not proved. That in fact, the learned Court has not Page 3 of 4 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 11 2025 Downloaded on : Sat Apr 12 02:10:23 IST 2025 NEUTRAL CITATION R/CR.MA/5516/2025 ORDER DATED: 11/04/2025 undefined considered the admission of the respondent Nos. 2 in the further statement and the applicant has a good case on merits. Hence, the application seeking leave to appeal must be granted.
6. 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.
7. 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 even though the criminal case has been filed against the applicant, the same has not become final and there is no evidence that the amount has been repaid by the respondent No. 2 as admitted by him in the further statement recorded under Section 313 of the Code of Criminal Procedure, 1973. Hence, the application seeking leave to appeal deserves consideration. Consequently, the same is allowed.
(S. V. PINTO,J) VVM Page 4 of 4 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 11 2025 Downloaded on : Sat Apr 12 02:10:23 IST 2025