Gujarat High Court
Sarvoday Credit Cum Consumers Co. Op. ... vs Amratbhai Viramabhai Prajapati on 16 April, 2025
NEUTRAL CITATION
R/CR.MA/7558/2025 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. 7558 of
2025
In F/CRIMINAL APPEAL NO. 13344 of 2025
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SARVODAY CREDIT CUM CONSUMERS CO. OP. SOC. LTD. THRO
RAJENDRASINH DASHUBHA CHAUHAN
Versus
AMRATBHAI VIRAMABHAI PRAJAPATI & ANR.
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Appearance:
MR JAIMIN A MEHTA(10552) for the Applicant(s) No. 1
MR NARENDRA RANAMALJI MADHU(13497) for the Applicant(s) No. 1
MS RUCHIKA K SONI(12848) 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 03.02.2025 passed by learned 2nd Additional Judicial Magistrate First Class, Deesa at Banaskantha (hereinafter referred to as the learned Trial Court") in Criminal Case No. 1562 of 2024, whereby, the learned Trial Court acquitted the respondent 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 is a co-operative Society and is engaged in the business of giving loan to its members. The respondent No. 1 had taken a loan from the applicant - Cooperative Society of an amount of Rs.3,00,000/- at the rate of 12% p.a. and Rs.8,000/- was the monthly installments. The respondent No. 1 did not pay the installments regularly and with interest an amount of Rs.8,78,733/- was outstanding, towards which, cheque bearing No. "000013" was issued by the respondent No. 1 from his account with "The Mehsana Urban Co.Op. Bank Ltd", Deesa Branch. The said cheque was deposited by the applicant in his account but the same returned unpaid with the endorsement " Funds Insufficient".
The applicant gave demand statutory notice to the respondent No.1, but the respondent did not repay the same within stipulated time and hence, the applicant filed a complaint under Section 138 of the N.I. Act before the learned 2nd Additional Judicial Magistrate First Class, Dessa which came to be registered as Criminal Case No.1562 of 2024. 2.2 The respondent No. 2 was duly served and appeared before the learned Trial Court and the applicant produced oral and documentary evidence but the learned Trial Court has concluded that the debt was time barred debt and was not a legally enforceable debt and by the impugned Page 2 of 4 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:44:54 IST 2025 NEUTRAL CITATION R/CR.MA/7558/2025 ORDER DATED: 16/04/2025 undefined judgment and order acquitted the respondent No. 1 from the offence of Section 138 of the N.I.Act.
3. Being aggrieved and dissatisfied by the impugned judgment and 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 Ms. Ruchika Soni 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 judgment and order passed by the learned Trial Court.
5. Learned advocate Ms. Ruchika Soni for the applicant submits that the learned Trial Court has not appreciated that the respondent No. 1 has admitted of taking the loan and in fact, in the year 2007, he had paid an amount of Rs.2,00,000/- towards the loan amount. Learned advocate for the applicant has submitted that the applicant has 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, application seeking leave to appeal must not be allowed.
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7. Considering the submissions advanced by the learned advocate for the applicant as also on perusal of the paper book produced on record by the learned advocate for the applicant, the loan has been taken by the respondent No. 1 towards which the cheque for the outstanding amount was given but the document on record have not been appreciated by the learned Trial Court in proper perspective. The application seeking leave to appeal requires consideration and consequently, the leave to appeal is granted.
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