Gujarat High Court
Prakashbhai Babarbhai Machhi vs State Of Gujarat on 16 April, 2025
NEUTRAL CITATION
R/CR.MA/1708/2023 ORDER DATED: 16/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 1708 of
2023
In R/CRIMINAL APPEAL NO. 186 of 2023
With
R/CRIMINAL APPEAL NO. 186 of 2023
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PRAKASHBHAI BABARBHAI MACHHI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR BHAVESH J PATEL(6801) for the Applicant(s) No. 1
KRUTARTH K DESAI(9662) for the Respondent(s) No. 2
MS.JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 16/04/2025
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION NO. 1708 OF 2023 By way of order dated 03.03.2025, the matter was referred to the Mediation Center, Gujarat High Court and as per the report of the Mediator, the mediation was unsuccessful.
1. The present application is filed by the applicant - original complainant under Section 419 (4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "B.N.S.S.") seeking leave to appeal against the judgment and order dated 02.07.2022 passed by learned Sessions Judge, Mahisagar at Lunawada acquitting the respondent No. 2 - original Page 1 of 5 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:42:12 IST 2025 NEUTRAL CITATION R/CR.MA/1708/2023 ORDER DATED: 16/04/2025 undefined accused in Criminal Appeal No. 19 of 2022 filed by the respondent No. 2
- accused against the impugned judgment and order dated 11.01.2022 passed by the learned Additional Judicial Magistrate First Class, Mahisagar at Lunawada (hereinafter referred to as the learned Trial Court) in Criminal Case No. 71 of 2019 whereby the learned Trial Court was pleased to convict the respondent No. 2 and ordered him to pay fine of Rs.6,75,000/- as compensation to the applicant and in default to undergo simple imprisonment for one month.
1.1 The respondent No. 2 is hereinafter referred to as " the accused" as he stood in the original case for the sake of convenience, clarity and brevity.
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 respondent No. 2 were having business transactions and the respondent No. 2 had purchased rice for an amount of Rs.4,50,000/- from the applicant, towards which, the respondent No. 2 gave cheque No. "336071" for the amount of Rs.4,50,000/- dated 13.11.2018 from his account with Axis Bank, Ankleshwar Branch. The said cheque was deposited by the applicant in his account, however, the said cheque was returned unpaid with endorsement " Funds Insufficient".
The applicant gave the demand statutory notice but the respondent No. 2 Page 2 of 5 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:42:12 IST 2025 NEUTRAL CITATION R/CR.MA/1708/2023 ORDER DATED: 16/04/2025 undefined did not send any reply and did not repay the amount and hence the applicant filed a complaint under Section 138 of the N.I. Act before the Court of Chief Judicial Magistrate, Mahisagar at Lunawada, which came to be registered as Criminal Case No.71 of 2019.
2.2 The respondent No. 2 was duly served and appeared before the learned Trial Court and the applicant produced the entire evidence on record and after appreciation of evidence, the learned Additional Judicial Magistrate First Class, Mahisagar at Lunawada was pleased to convict the respondent No. 2 for the offence of under Section 138 of the N.I.Act, 1881 and was pleased to pass the order of conviction of fine only since the applicant is a working professional and ordered to pay Rs.6,75,000/- as compensation to the applicant and in default simple imprisonment for one months.
3. Being aggrieved and dissatisfied with the impugned judgment and order above, the respondent No. 2 filed Criminal Appeal No. 19 of 2022 before the learned Sessions Court, Mahisagar at Lunawada and after the arguments of learned advocates for both the parties were heard, the learned Sessions Judge, Mahisagar at Lunawada was pleased to allow the appeal and set aside the judgment and order passed by the learned Additional Judicial Magistrate First Class, Mahisagar at Lunawada in Criminal Case No. 71 of 2019, on 02.07.2022.
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4. Being aggrieved and dissatisfied by the impugned order, the applicant has preferred present application seeking leave to file an appeal under Section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023.
5. Heard learned advocate Mr. Bhavesh J. Patel for the applicant, learned advocate Mr. Krutarth K. Desai for the respondent No. 2, learned Additional Public Prosecutor Ms. Jirga Jhaveri, for the respondent No. 1- State. Perused the judgment and order passed by the learned trial Court as well as the judgment and order passed by the learned Sessions Court.
6. Learned advocate Mr. Bhavesh J Patel for the applicant submits that the learned Trial Court has concluded that the legally enforceable debt was due to the applicant and the respondent No. 2 has committed an offence but the learned Sessions Court has not appreciated the evidence in proper perspective. The applicant has a good case on merits and hence, the application seeking leave to appeal must be allowed.
7. Learned advocate Mr. Krutarth K Desai for the respondent No. 2 and learned Additional Public Prosecutor Ms. Jirga Jhaveri for the respondent-State have jointly submitted that the learned Sessions Judge has appreciated all the evidence in a different manner and has concluded that the respondent No. 2 has not committed offence under Section 138 of the N.I.Act, 1881 and hence, the application seeking leave to appeal must be rejected.
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8. Considering the submissions advanced by the learned advocate for the applicant as also on perusal of the impugned judgment and order passed by the learned Sessions Judge, Mahisagar at Lunawada, and the judgment and order of conviction passed by the learned Trial Court prima-facie, it appears that the same set of evidence have been appreciated by two Courts in a different manner and hence, the issue requires consideration. Hence, the application seeking leave to appeal deserves consideration. Consequently, the same is allowed. ORDER IN CRIMINAL APPEAL NO. 186 OF 2023 ADMIT. Learned Additional Public Prosecutor appears and waives service of notice of admission on behalf of the respondent-State and learned Advocate Mr. Krutarth K. Desai for the respondent No.2.
(S. V. PINTO,J) VVM Page 5 of 5 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:42:12 IST 2025