Gujarat High Court
Jatin Traders Thro Prop. Patel ... vs Jay Bahuchar Traders Partner Patel ... on 23 April, 2025
NEUTRAL CITATION
R/CR.MA/7554/2025 ORDER DATED: 23/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 7554 of
2025
In F/CRIMINAL APPEAL NO. 14640 of 2025
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JATIN TRADERS THRO PROP. PATEL JATINKUMAR LALLUBHAI
Versus
JAY BAHUCHAR TRADERS PARTNER PATEL VISHAL BHARATBHAI &
ANR.
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Appearance:
MR DIPAN DESAI(2481) 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 : 23/04/2025
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 05.03.2025 passed by learned Additional Chief Judicial Magistrate, Patan (hereinafter referred to as the learned Trial Court") in Criminal Case No. 1038 of 2020, whereby, the learned Trial Court acquitted the respondent No. 1 for the offence punishable under Sections 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act, for short).
2. Heard learned advocate Mr. Dipan Desai for the applicant and learned Additional Public Prosecutor Ms. Jirga Jhaveri for the Page 1 of 4 Uploaded by VISHAL MISHRA(HC01088) on Thu Apr 24 2025 Downloaded on : Fri Apr 25 02:37:44 IST 2025 NEUTRAL CITATION R/CR.MA/7554/2025 ORDER DATED: 23/04/2025 undefined respondent-State.
3. Learned advocate Mr. Dipan Desai for the applicant submits that the applicant is the proprietor of Jatin Traders and the respondent No. 1 is doing business in the name of Jay Bahuchar Traders. The applicant and the respondent No. 1 had business transactions and from the year 2018, the business transactions went on and the amount of Rs.4,83,695/- was outstanding, towards which, the respondent No. 1 issued cheque No. 000458 dated 02.09.2020 for Rs.4,83,695/- from his account with Patan Nagarik Sahakari Bank Limited, Patan Branch. The said cheque was deposited by the applicant in his account but the same returned unpaid with the endorsement "Funds Insufficient". The demand statutory notice was issued and the same came to be duly served to the respondent No. 1 but the respondent No. 1 did not repay the amount and hence, the applicant No. 1 filed the complaint under Section 138 of the NI Act, 1881 before the Court of Chief Judicial Magistrate, Patan, which came to be registered as Criminal Case No. 1038 of 2020.
2.2 The respondent No. 1 was duly served with the summons and appeared before the learned Trial Court and after the plea of the respondent No. 1 was recorded at Exh.5, the entire evidence of the applicant was taken on record. The applicant stepped into the witness-box and produced thirteen documentary evidences to prove the legally Page 2 of 4 Uploaded by VISHAL MISHRA(HC01088) on Thu Apr 24 2025 Downloaded on : Fri Apr 25 02:37:44 IST 2025 NEUTRAL CITATION R/CR.MA/7554/2025 ORDER DATED: 23/04/2025 undefined enforceable debt and after the arguments of the learned advocates for the respective parties were heard, the learned Additional Chief Judicial Magistrate, Patan was pleased to pass the impugned judgment and order and acquit the respondent No. 1 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 Nagarik Suraksha Sanhita, 2023.
4. Learned advocate Mr. Dipan Desai for the applicant submits that only reason for acquittal considered by the learned Trial Court is that Jay Bahuchar Traders was a partnership firm and the Partnership Farm was not joined as party to the proceedings in light of the judgment of the Anita Hada Vs. Godfathers Travels and Tours Limited , but in fact, in the evidence on record, it was proved that Jay Bahuchar Traders was not a partnership firm a the proprietary concern as in the deed dated 05.03.2019, the other partner Hashmukhbhai Ranchhodbhai Chaudhary had retired from the partnership firm and the surviving partner Vishal Bharatbhai Patel had continued to run the business in the name and style of Jay Bahuchar Traders.
4.1 Learned advocate Mr. Dipan Desai submits that the release deed of the partner was produced at Exh. 46 but the same has not been Page 3 of 4 Uploaded by VISHAL MISHRA(HC01088) on Thu Apr 24 2025 Downloaded on : Fri Apr 25 02:37:44 IST 2025 NEUTRAL CITATION R/CR.MA/7554/2025 ORDER DATED: 23/04/2025 undefined appreciated in proper perspective by the learned Trial Court. Learned advocate for the applicant further submits that the cheque is dated 02.09.2000, Jay Bahuchar Traders is a proprietary firm ran by surviving partner. Learned advocate submits that the applicant has a good case on merits and the application seeking leave to appeal must be allowed.
5. 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.
6. 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, more particularly, the deed which is produced at Exh.46, 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.
(S. V. PINTO,J) VVM Page 4 of 4 Uploaded by VISHAL MISHRA(HC01088) on Thu Apr 24 2025 Downloaded on : Fri Apr 25 02:37:44 IST 2025