Gujarat High Court
Vershi Dharamshi Katua vs State Of Gujarat on 16 April, 2025
NEUTRAL CITATION
R/CR.MA/22171/2024 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. 22171
of 2024
In F/CRIMINAL APPEAL NO. 25466 of 2024
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VERSHI DHARAMSHI KATUA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
RAZIN S ZEENA(9377) for the Applicant(s) No. 1
MR. DARSHAN C PANCHAL(14588) for the Respondent(s) No. 2
MR. MEHUL P. PANDYA(14183) 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
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 01.12.2024 passed by the Court of learned Chief Judicial Magistrate, Gandhidham (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 7956 of 2021, whereby, the learned Trial Court has acquitted the respondent No. 2 for the offence punishable under Sections 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act, for short).
Page 1 of 4 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:42:40 IST 2025 NEUTRAL CITATION R/CR.MA/22171/2024 ORDER DATED: 16/04/2025 undefined 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.
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 known to each other and the applicant had given an amount of Rs.25,500/- to the respondent No. 2, towards which, the respondent No. 2 had issued cheque No. "113371"
dated 26.05.2021 for an amount of Rs.25,000/- from his account with Union Bank, Gandhidham Branch. The said cheque was deposited by the applicant in his account with Bank of India, Gandhidham Branch. However, the said cheque returned unpaid with the endorsement "Funds Insufficient". The demand statutory notice was given by the applicant but the same returned unserved with the endorsement that " no such person is residing at the address. The amount was not paid within stipulated time and hence, the applicant filed a complaint under Section 138 of the N.I. Act, before the Court of Chief Judicial Magistrate, Gandhidham, which came to be registered as Criminal Case No.7956 of 2021. 2.2 The respondent No. 2 was duly served and appeared before the learned Trial Court and the entire evidence of the applicant was taken on record. At the end of the trial, the learned Trial Court was pleased to appreciate the evidence and by the impugned judgment and order was Page 2 of 4 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:42:40 IST 2025 NEUTRAL CITATION R/CR.MA/22171/2024 ORDER DATED: 16/04/2025 undefined pleased to acquit the respondent No. 2 for the offence under Section 138 of the N.I.Act.
3. 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.
4. Heard learned advocate Mr.O.I.Pathan for the applicant, learned advocate Mr. Mehul P. Pandya for the respondent No. 2 and learned Additional Public Prosecutor Ms. Jirga Jhaveri, for the respondent State. Perused the impugned judgment and order passed by the learned trial Court.
5. Learned advocate Mr. O.I.Pathan for the applicant submits that the learned Trial Court has concluded that respondent No. 2 has successfully rebutted the presumption and has also concluded the notice was not duly served to the respondent No. 2 but if the address mentioned in the criminal case and the address of the notice sent is perused, it is the same address and the summons of the case was duly served to the respondent no. 2 at the same address. Learned advocate for the applicant submits that if the evidence is perused, the respondent No. 2 has not rebutted the presumption and the applicant has a good case on merits and the application seeking leave to appeal must be allowed.
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6. Learned Additional Public Prosecutor, Ms. Jirga Jhaveri for the respondent-State and learned advocate Mr. Mehul P. Pandya have jointly submitted that learned Trial Court has appreciated all the evidence in proper perspective and hence, the application seeking leave to appeal must be rejected.
7. Considering the submissions advanced by the learned advocate for the applicant as also on perusal of the impugned judgment and order, prima facie, it transpires that the demand statutory notice was sent at the address mentioned in the complaint as also mentioned in this application and the notice has been duly served on the same address, but the learned trial Court has not appreciated the evidence in proper perspective and hence, the application seeking leave to appeal requires consideration. Consequently, leave to appeal is granted.
(S. V. PINTO,J) VVM Page 4 of 4 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:42:40 IST 2025