Gujarat High Court
Jitendra Arvindbhai Gandhi vs Rakesh Sharma Proprietor Of Global ... on 11 April, 2025
NEUTRAL CITATION
R/CR.MA/7187/2025 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. 7187 of
2025
In F/CRIMINAL APPEAL NO. 13747 of 2025
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JITENDRA ARVINDBHAI GANDHI
Versus
RAKESH SHARMA PROPRIETOR OF GLOBAL MARKETING SERVICES &
ANR.
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Appearance:
MR.DARSHAN A. DAVE(7921) 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 : 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 03.03.2025 passed by the Court of Chief Judicial Magistrate, Bharuch (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 1700 of 2018, whereby the learned Trial Court has acquitted the respondent No.1 from the offence under Section 138 of the Negotiable Instruments Act (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. 1 were known to each other for more than fifteen years and they had friendly relation and the respondent No. 1 had some financial constraint to run his business for Page 1 of 4 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 11 2025 Downloaded on : Sat Apr 12 02:10:54 IST 2025 NEUTRAL CITATION R/CR.MA/7187/2025 ORDER DATED: 11/04/2025 undefined which he had borrowed an amount of Rs.5,00,000/-. Due to the relations between them, the applicant had given an amount of Rs.2,00,000/- by cheque dated 03.07.2014 and an amount of Rs.3,00,000/- in cash and in all an amount of Rs.5,00,000/- was given to the respondent No. 1. That the amount was not paid for a long time and as the applicant kept on demanding the amount and on 31.03.2018, the respondent No. 1 gave Cheque No. "267757" for Rs.,5,00,000/- from his account with IDBI Bank, Dahisar (E) Branch. The cheque was deposited by the applicant in his account but the same returned unpaid with the endorsement "Funds Insufficient". The demand statutory notice was sent by RPAD but the same was refused by respondent No. 1 and no amount was paid within the stipulated time and hence the applicant filed the complaint under Section 138 of the N.I. Act before the Court of the Chief Judicial Magistrate, Bharuch, which came to be registered as Criminal Case No. 1700 of 2018.
2.2 The respondent No. 1 was duly served and had appeared before the learned Trial Court and after the plea of the applicant was recorded, the entire evidence of the applicant was taken on record. After the evidence was appreciated, the learned Chief Judicial Magistrate, Bharuch was pleased to pass the impugned judgment and order of acquittal and acquit the respondent No. 1 from the offence under Section 138 of the N.I.Act. Page 2 of 4 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 11 2025 Downloaded on : Sat Apr 12 02:10:54 IST 2025
NEUTRAL CITATION R/CR.MA/7187/2025 ORDER DATED: 11/04/2025 undefined
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. Darshan A Dave appearing for the applicant, learned APP Ms. Dhwani Tripathi for the respondent No. 2 - State. Perused the judgment and order passed by the learned trial Court.
5. Learned advocate Mr. Darshan A Dave for the applicant submits that during the trial talks of settlement were going on between them and the respondent No. 1 agreed to repay an amount of Rs.5,00,000/- to Rs.7,00,000/- towards the outstanding amount as, in all four matters were pending before the learned Trial Court between the parties and in all amount of Rs.15,00,000/- was required to be paid by the applicant . The learned Trial Court, after considering the arguments of learned advocates for the parties and the evidence on record concluded that the applicant had proved his debt as in fact the amount has been given to the respondent No. 1 but as the cheques were issued after the period of limitation, considering the period of limitation i.e. three years had elpased , concluded that the debt was time barred debt and has passed the impugned judgment and order of acquittal. Learned advocate for the applicant submits that in fact, the issuing of the cheque in question for Page 3 of 4 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 11 2025 Downloaded on : Sat Apr 12 02:10:54 IST 2025 NEUTRAL CITATION R/CR.MA/7187/2025 ORDER DATED: 11/04/2025 undefined the time barred amount were itself a fresh agreement in light of the provision of Section 25 (3) of the Indian Contract Act, and it was a legally enforceable debt, towards which the cheque in question was issued but the learned Trial Court has not appreciated this fact. The applicant has a good case on merits and 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 the learned Trial Court has not appreciated all the evidence produced on record by the applicant in proper perspective and 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 02:10:54 IST 2025