Gujarat High Court
Bhavesh Kanaiyalal Agravat vs Ramesh Jeyshankarbhai Joshi on 16 April, 2025
NEUTRAL CITATION
R/CR.MA/6314/2025 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. 6314 of
2025
In F/CRIMINAL APPEAL NO. 9265 of 2025
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BHAVESH KANAIYALAL AGRAVAT
Versus
RAMESH JEYSHANKARBHAI JOSHI & ANR.
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Appearance:
MR PRITESH V RAMI(13679) for the Applicant(s) No. 1
MS. JIRGA JHAVERI, APP for the Respondent(s) No. 2
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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 seeking leave to appeal against the judgement and order of acquittal dated 08.11.2024 passed by learned 4th Additional Chief Judicial Magistrate, Porbandar (hereinafter referred to as the learned Trial Court") in Criminal Case No. 2183 of 2017, whereby, the learned Trial Court 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).
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.
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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 had family relations and the son of the respondent No. 2 wanted to travel abroad and the respondent No. 2 was in need of financial assistance and the applicant had given an amount of Rs.12,00,000/- in parts to the respondent No. 2. Towards the outstanding amount, the respondent No.2 issued seven cheques including Cheque No."036344" dated 20.09.2017 for Rs.2,00,000/- from his account with Union Bank, Porbandar Branch. The said cheque was deposited by the applicant in his account with Axis Bank, Porbandar Branch, which came to be returned unpaid with the endorsement "Funds Insufficient". The demand statutory notice was given to the respondent No. 2, which was duly served to the respondent No. 2 but the respondent No. 2 did not accept the same and did not repay the outstanding amount within stipulated time and hence, the applicant filed a complaint under Section 138 of the N.I. Act, which came to be registered as Criminal Case No.2183 of 2017.
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 Page 2 of 5 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:42:46 IST 2025 NEUTRAL CITATION R/CR.MA/6314/2025 ORDER DATED: 16/04/2025 undefined applicant has produced one oral evidence and five 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. After the evidence was appreciated, the learned 4th Additional Chief Judicial Magistrate, Porbandar 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 present application seeking leave to file an appeal under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023.
4. Heard learned advocate Mr. Pritesh Rami for the applicant and learned Additional Public Prosecutor Ms. Jirga Jhaveri, for the respondent State. Though served the respondent has not appeared either in person or through an advocate. Perused the impugned judgment and order passed by the learned trial Court as well as the paper book produced on record by the learned advocate for the applicant.
5. Learned advocate Mr. Pritesh Rami for the applicant submits that the applicant had also produced a deed of Memorandum of Understanding executed between the applicant and the respondent No. 2 Page 3 of 5 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:42:46 IST 2025 NEUTRAL CITATION R/CR.MA/6314/2025 ORDER DATED: 16/04/2025 undefined at Exh:56, which was notarized, wherein the respondent No. 2 admitted of taking amount and issued seven cheques of various dates towards payment of the same. The deed mentions the numbers of cheques with the amount and dates. Learned advocate for the applicant submits that during the pendency of the trial, the applicant was also arrested and released on bail wherein he has admitted that he had taken the amount and he would repay the amount within three months before the learned Trial Court, however, the learned Trial Court has not appreciated the evidence and was pleased to pass the impugned judgment and order of acquittal. Learned advocate for the applicant submits that the learned Trial Court has not appreciated the evidence in proper perspective and the fact that the Memorandum of Understanding which is produced at Exh.56 admits that the amount was taken towards which, the cheque in question was issued. The applicant had a good case on merits and the application seeking leave to appeal must be allowed.
6. Learned Additional Public Prosecutor, Ms. Jirga Jhaveri for the respondent-State has 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 Page 4 of 5 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:42:46 IST 2025 NEUTRAL CITATION R/CR.MA/6314/2025 ORDER DATED: 16/04/2025 undefined the applicant as also on perusal of the paper book produced on record by the learned advocate for the applicant, more particularly, the document which is produced at Exh.56, prima facie, it appears that the learned trial Court has not appreciated the evidence in proper perspective and hence, application seeking leave to appeal requires consideration. Consequently, leave to appeal is granted.
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