Gujarat High Court
Pramodbhai Popatbhai Barvaliya(Poa Of ... vs State Of Gujarat on 1 April, 2025
NEUTRAL CITATION
R/CR.MA/4826/2025 ORDER DATED: 01/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 4826 of
2025
In R/CRIMINAL APPEAL NO. 2129 of 2024
==========================================================
PRAMODBHAI POPATBHAI BARVALIYA(POA OF VILASBEN
PRAMODBHAI BARVALIYA
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR DILIP L KANOJIYA(3691) for the Applicant(s) No. 1
MS. DHWANI TRIPATHI, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 01/04/2025
ORAL ORDER
1. The present application is filed by the applicant - original complainant under Section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as "the BNSS") seeking leave to appeal against the judgment and order dated 10.02.2023 passed by the learned 11th Additional Sessions Judge, Surat acquitting the respondent No. 2 in Criminal Appeal No. 338 of 2021 filed by the respondent No. 2 challenging the judgment and order of conviction passed by the learned 19th Additional Chief Judicial Magistrate, Surat ( hereinafter referred to as "the learned Trial Court) in Criminal Case No. 2445 of 2017 for the offence under Section 138 of the Negotiable Instrument Act, 1881. (hereinafter referred to as the NI Act).
Page 1 of 4 Uploaded by VISHAL MISHRA(HC01088) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 22:51:09 IST 2025 NEUTRAL CITATION R/CR.MA/4826/2025 ORDER DATED: 01/04/2025 undefined 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.
2. Heard learned advocate Mr. Sagar D Vaghariya for learned advocate Mr. Dilip Kanojiya and learned Additional Public Prosecutor Ms. Dhwani Tripathi for the respondent - State. Perused the judgement and order of acquittal passed by the learned Trial Court.
3. Learned advocate Mr. Sagar D Vaghsiya for learned advocate Mr. Dilip Kanojiya appearing for the applicant submits that the applicant is doing the business of Yarn and Art Silk Cloth in the name and style of M/ s. Karishma Creation and the respondent No. 2 was doing the business of selling and purchasing cloth. The respondent No. 2 had purchased goods by various invoices and goods worth Rs.29,28,674/- was purchased in the year 2015 towards which cheque No. 077224 dated 24.10.2016 for an amount of Rs.25,04,550/- from his account with Bank of Maharastra was issued. The cheque was deposited by the applicant in his account with Surat Bank of Maysore, K.K.Road, Udhna Branch, Surat and the cheque was returned unpaid with endorsement "Funds Insufficient. The demand statutory notice was given and an evasive and vague reply was given by the respondent No. 2 but the payment was not paid and hence the complaint under Section 138 of the NI Act was filed before the Court of Chief Judicial Magistrate, Surat , which came to be registered as Criminal Page 2 of 4 Uploaded by VISHAL MISHRA(HC01088) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 22:51:09 IST 2025 NEUTRAL CITATION R/CR.MA/4826/2025 ORDER DATED: 01/04/2025 undefined Case No. 2445 of 2017. After the respondent No. 2 appeared before the learned Trial Court, the entire evidence of the applicant and the respondent No. 2 was taken on record the learned Trial Court convicted the respondent No. 2 for the offence of under Section 138 of NI Act and sentence the respondent No. 2 to simple imprisonment for a period of eighteen months and ordered the respondent No. 2 to pay twice the amount of cheque as compensation to the applicant within a period of thirty days under Section 357(3) of the Code of Criminal Procedure, 1973.
3.1 Being aggrieved and dissatisfied with the judgment and order of conviction, the respondent No. 2 filed Criminal Appeal No. 338 of 2021 before the Court of learned Sessions Judge, Surat and after the arguments of the learned advocates for both the parties were heard, the learned 11 th Additional Sessions Judge, Surat was pleased to allow the appeal and acquit the respondent No. 2 for the offence under Section 138 of the NI Act.
4. Learned advocate for the applicant submits that the applicant had produced the copies of the invoices as also other necessary documents and has proved the legally enforceable debt and the same was properly appreciated by the learned trial Court. That the learned Sessions Judge, Surat even though the evidence was not rebutted by the respondent Page 3 of 4 Uploaded by VISHAL MISHRA(HC01088) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 22:51:09 IST 2025 NEUTRAL CITATION R/CR.MA/4826/2025 ORDER DATED: 01/04/2025 undefined No.2 considered the presumption duly rebutted and has passed the impugned judgment and order of acquittal. Learned advocate for the applicant submits that all the documents prove that there were business transaction between the parties and the amount was due towards which the cheque in question was given and the cheque was given towards the legally enforceable due and hence the application seeking leave to appeal must be granted.
4. Learned APP Ms. Dhwani Tripathi for the respondent - State has submitted that the learned Trial Court has appreciated all the evidence in proper perspective and no interference is required and hence the application for leave to appeal must be rejected.
5. Having heard the learned advocate for the applicant and on perusal of the judgment and order passed by the learned trial Court as well as learned 11th Additional Sessions Judge, Surat, prima facie, it appears that the same set of evidence is appreciated by the learned trial Court has well as learned Sessions Court in a different manner. The application seeking leave to appeal deserves consideration. Consequently, the same is allowed.
(S. V. PINTO,J) VVM Page 4 of 4 Uploaded by VISHAL MISHRA(HC01088) on Tue Apr 01 2025 Downloaded on : Tue Apr 01 22:51:09 IST 2025