Gujarat High Court
Gagubhai Dhamabhai Dangar vs State Of Gujarat on 16 April, 2025
NEUTRAL CITATION
R/CR.MA/5536/2025 ORDER DATED: 16/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 5536 of 2025
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 8565 of 2025
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GAGUBHAI DHAMABHAI DANGAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR Y J PATEL(3985) for the Applicant(s) No. 1
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 378(4) of the Code of Criminal Procedure, 1973 seeking leave to file an appeal against the order dated 28.01.2025 passed by the learned Additional Chief Judicial Magistrate, Gandhidham - Kutch (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 2558/2019, whereby, the learned Trial Court was pleased to acquit the accused from the offence under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to "the N.I. Act" for short).
2. Heard learned advocate Mr.Y.J.Patel for the applicant Page 1 of 4 Uploaded by F.S. KAZI(HC01075) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:29:21 IST 2025 NEUTRAL CITATION R/CR.MA/5536/2025 ORDER DATED: 16/04/2025 undefined and learned APP Ms.Jirga Jhaveri for the respondent No.1 - State.
3. Learned advocate Mr.Y.J.Patel for the applicant submits that the applicant was doing the business of wood and the applicant and the respondent No.2 came in touch through their common friend. As in the year 2018, the respondent no.2 was in need of some finance, the applicant had given an amount of Rs.4,35,000/- in cash for a period of one or two months. That on demand, the respondent No.2 gave cheque No.496715 dated 07.05.2019 of Rs.4,35,000/- from his account with State Bank of India, Aadipur Branch. The cheque was deposited by the applicant in his account with IDBI Bank, Gandhidham Branch, but the cheque returned unpaid with the endorsement "Funds Insufficient". The demand statutory notice was given, which was duly served to the respondent No.2 and the respondent No.2 gave an evasive reply including a false statement that the respondent No.2 had given an amount of Rs.2,50,000/- to the applicant four years ago and had already paid an amount of Rs.4,50,000/- and only Rs.45,000/- was outstanding towards the interest and the amount was not paid within stipulated time. The applicant filed the complaint under Section 138 of N.I.Act before the Court of Chief Judicial Magistrate, First Class, Gandhidham - Page 2 of 4 Uploaded by F.S. KAZI(HC01075) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:29:21 IST 2025
NEUTRAL CITATION R/CR.MA/5536/2025 ORDER DATED: 16/04/2025 undefined Kutch, which came to be registered as Criminal Case No. 2558/2019. The respondent No.2 was duly served with the summons and he appeared before the learned Trial Court and the entire evidence of the applicant was taken on record. During the trial, the applicant had produced a copy of Income Tax Return at Exh.36, wherein, the amount of Rs.4,35,000/- was loaned to the respondent No.2 is shown but the learned Trial Court has not appreciated the documentary evidence including the Income Tax Return at Exh.36 in proper perspective and has considered that the applicant did not have the financial capacity to pay the amount of Rs.4,35,000/- to the applicant and has acquitted the respondent No.2 from the offence under Section 138 of the N.I.Act. Learned advocate submits that the applicant has a good case on merits, and hence, the application for leave to appeal may be granted.
4. Learned APP Ms. Jirga Jhaveri for the respondent State has submitted that the learned Trial Court has considered all the documents produced by the applicant and has also considered the evidence and has passed the impugned order of acquittal considering the settled principles of law and hence, the leave to appeal may not be granted.
5. Considering the submissions of learned advocate for Page 3 of 4 Uploaded by F.S. KAZI(HC01075) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:29:21 IST 2025 NEUTRAL CITATION R/CR.MA/5536/2025 ORDER DATED: 16/04/2025 undefined the applicant as also the paper book on record and the impugned judgment and order, prima facie, it appears that the applicant has produced all the necessary documents including the Income Tax Return at Exh.36 as evidence in support of his case but the learned Trial Court has failed to appreciate the entire evidence in proper perspective, and hence, in the peculiar facts and circumstances of the case and in the considered opinion of this Court, the application deserves to be considered. Consequently, the application for leave to appeal is granted and disposed off accordingly.
(S. V. PINTO,J) F.S.KAZI Page 4 of 4 Uploaded by F.S. KAZI(HC01075) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:29:21 IST 2025