Gujarat High Court
Shah Paragkumar Govindlal vs Jatin M. Shah on 28 April, 2025
NEUTRAL CITATION
R/CR.MA/24586/2024 ORDER DATED: 28/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 24586
of 2024
In F/CRIMINAL APPEAL NO. 47158 of 2024
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SHAH PARAGKUMAR GOVINDLAL
Versus
JATIN M. SHAH & ANR.
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Appearance:
MR. ALTAF Y CHARKHA(7271) for the Applicant(s) No. 1
Ms. Dhwani Tripathi, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 28/04/2025
ORAL ORDER
1. The present application is filed by the applicant - original complainant under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short "BNSS") seeking leave to file an appeal against the judgment and order dated 04.11.2024 passed by the learned 3 rd Judicial Magistrate, Godhra (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 6250 of 2023, whereby the respondent No. 1 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N I Act"). Page 1 of 6 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:19:47 IST 2025
NEUTRAL CITATION R/CR.MA/24586/2024 ORDER DATED: 28/04/2025 undefined 1.1 The respondent No. 1 is hereinafter referred to as "the accused" as he stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts culled out from the memo of the present application as well as the impugned judgment and order and paper book filed by the applicant are as under:
2.1 The applicant filed a complaint against the accused under Section 138 of the Act, as the accused had taken a loan of Rs.5,00,000/- from the applicant and the accused had issued cheque No.000152 for the amount of ₹5,00,000/- dated 11.09.2023 from his account with Bank of Baroda, Umbergaon, Valsad Branch. The applicant deposited the cheque on 12.09.2023 in his account and the cheque was dishonored and the reason mentioned in the return memo was "Funds Insufficient". The applicant sent the statutory demand notice to the accused on 06.10.2023 which was duly served on 09.10.2023 and an evasive reply was given by the accused and no payment was made and hence the applicant filed the criminal complaint before the Court of the Judicial Magistrate, Godhra under Section 138 Page 2 of 6 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:19:47 IST 2025 NEUTRAL CITATION R/CR.MA/24586/2024 ORDER DATED: 28/04/2025 undefined of the N I Act, 1881 which was registered as Criminal Case no. 6250 of 2023.
2.2 The accused was served with the summons and the accused appeared before the learned Trial Court and after his plea was recorded at Exh. 07 the evidence of the applicant was taken on record. The applicant was examined on oath and 07 documentary evidences were produced in support of his case and after the closing pursis at Exh. 20 was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded wherein the accused stated that the disputed cheque was given to help the applicant in 2017 and the cheque has been misused in 2023 and a false complaint has been filed. The accused refused to step into the witness box but 02 documentary evidences were produced in his defence and after the arguments of the learned advocates for both the parties were heard, by the impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the N I Act.
3. Being aggrieved and dissatisfied with the same, the Page 3 of 6 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:19:47 IST 2025 NEUTRAL CITATION R/CR.MA/24586/2024 ORDER DATED: 28/04/2025 undefined applicant has preferred the present application seeking leave to appeal mainly stating that the learned Trial Court has not properly interpreted the evidence and has misread the evidence and the impugned judgment is perverse, erroneous and contrary to law.
4. Heard learned advocate Mr. Altaf Y. Charkha appearing for the applicant and learned APP Ms. Dhwani Tripathi for the respondent - State.
5. Learned Advocate Mr. Altaf Y. Charkha for the applicant submits that the learned Trial Court has not appreciated that the applicant has successfully established that the cheque in question was issued by the accused from the bank account maintained by him. The applicant has proved that the cheque was written by the accused and it was dishonoured and as the applicant is the holder in due course of the cheque in question the statutory presumption under Section 139 of the N I Act is to be drawn in favour of the applicant. The learned Trial Court has not appreciated the provisions of Section 118 and 138 of the NI Act in Page 4 of 6 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:19:47 IST 2025 NEUTRAL CITATION R/CR.MA/24586/2024 ORDER DATED: 28/04/2025 undefined proper perspective. The accused had failed to rebut the presumption and hence the judgement and order of acquittal is bad in law and the leave to appeal must be granted.
6. Learned APP Ms. Dhwani Tripathi for the respondent -
State has submitted that the learned Trial Court has appreciated all the evidence in detail in light of the citations referred to in the judgement and has passed the judgement and order of acquittal which is proper and no interference is required and hence the application for leave to appeal must be rejected.
7. Considering the submissions of learned advocate for the applicant as also the impugned judgement and order and the paper book produced by the learned advocate for the applicant on record the accused has refused to step into the witness box but has produced two documentary evidence on record at Exh. 24 and 25, which is cheque clearing confirmation and bank account statement. From the documents on record the financial transaction between Page 5 of 6 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:19:47 IST 2025 NEUTRAL CITATION R/CR.MA/24586/2024 ORDER DATED: 28/04/2025 undefined the parties has been proved, but the documents on record have not been appreciated by the learned Trial Court in proper perspective and the application seeking leave to appeal requires consideration.
8. Consequently, the application is allowed and disposed of accordingly.
(S. V. PINTO,J) VASIM S. SAIYED Page 6 of 6 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:19:47 IST 2025