Gujarat High Court
Amrutbhai Mudjibhai Patel vs State Of Gujarat on 16 April, 2025
NEUTRAL CITATION
R/CR.MA/5403/2025 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. 5403 of 2025
In
F/CRIMINAL APPEAL NO. 10285 of 2025
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AMRUTBHAI MUDJIBHAI PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. PANAM C SONI(7035) 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 21.02.2025 passed by the learned Judicial Magistrate, First Class, Virpur, District Mahisagar (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 712/2023, 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.Panam Soni for the Page 1 of 4 Uploaded by F.S. KAZI(HC01075) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:29:10 IST 2025 NEUTRAL CITATION R/CR.MA/5403/2025 ORDER DATED: 16/04/2025 undefined applicant and learned APP Ms.Jirga Jhaveri for the respondent No.1 - State.
3. Learned advocate Mr.Panam Soni for the applicant submits that the applicant was doing the business of cement and and there was a good relation between the applicant and the respondent No.2. As in June, 2019, the respondent no.2 was in need of money, he approached the applicant and the applicant gave an amount of Rs.5,50,000/-, which was to be repaid within one year. That as the amount was not paid by the respondent No.2, on demand. the respondent No.2 issued cheque No.000005 dated 17.05.2023 of Rs.5,50,000/- from his account with the HDFC Bank, Malpur Road, Modasa Branch. The cheque was deposited by the applicant in his account, but the cheque returned unpaid with the endorsement "Account Closed". The demand statutory notice was given, which was duly served to the respondent No.2 but the respondent No.2 did not send any reply to the notice nor paid the amount, and hence, the applicant filed the complaint under Section 138 of N.I.Act before the Court of Judicial Magistrate, First Class, Virpur, District Mahisagar, which came to be registered as Criminal Case No. 712/2023. The respondent No.2 was duly served and he appeared before the learned Trial Court and entire evidence of the applicant was Page 2 of 4 Uploaded by F.S. KAZI(HC01075) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:29:10 IST 2025 NEUTRAL CITATION R/CR.MA/5403/2025 ORDER DATED: 16/04/2025 undefined taken on record. During trial, the applicant has produced a copy of the passbook of his account with Bank of Baroda at Exh.24 to prove that he had the financial capacity and had withdrawn the amount of Rs.4,00,000/- from his account with Bank of Baroda and had also Rs.1,50,000/- in cash to give the respondent No.2. After appreciation of the entire evidence on record, the learned trial Court was pleased to conclude that the applicant has not proved his legally enforceable debt and has not believed that the amount was withdrawn from the account of the applicant. Learned advocate for the applicant submits that the respondent No.2 had raised the defence that the respondent No.2 had given the cheque to the applicant towards purchase of cement but did not produce any bills or documentary evidence that he had purchased the cement. Learned advocate for the applicant submits that the applicant has successfully proved his financial capacity as also the fact that he had withdrawn the amount of Rs.4,00,000/- from his account and Rs.1,50,000/- in cash to give the applicant but the learned trial Court has not appreciated the same and by the impugned judgment and order was pleased to acquit 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.
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NEUTRAL CITATION R/CR.MA/5403/2025 ORDER DATED: 16/04/2025 undefined
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 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 a copy of the passbook of his account with Bank of Baroda 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 21:29:10 IST 2025