Gujarat High Court
Hasmukhbhai Chogaji Kumawat Prop. Of ... vs State Of Gujarat on 28 April, 2025
NEUTRAL CITATION
R/CR.MA/5785/2025 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. 5785 of
2025
In F/CRIMINAL APPEAL NO. 10149 of 2025
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HASMUKHBHAI CHOGAJI KUMAWAT PROP. OF AMBIKA VASAN
BHANDAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR JIGAR D DAVE(6528) 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 : 28/04/2025
ORAL ORDER
1. The present application is filed by the applicant - original complainant under Section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS") seeking leave to file an appeal against the order dated 10.01.2025 passed by the learned 4 th Additional Chief Judicial Magistrate, Ahmedabad Rural (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 1650 of 2020, whereby the learned Trial Court has dismissed the Criminal Case for want of prosecution, as the applicant did not remain present, under the provisions of Section 256(3) of Cr.P.C. and the respondent No. 2 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act')
2. Heard learned advocate Mr. Jigar D Dave for the applicant and learned Additional Public Prosecutor for the respondent-State. Though Page 1 of 3 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:23:20 IST 2025 NEUTRAL CITATION R/CR.MA/5785/2025 ORDER DATED: 28/04/2025 undefined served, the respondent No. 2 has not chosen not to appear either in person or through his advocate.
3. Learned advocate for the applicant submits that the applicant is the proprietor of Ambika Vasan (Utensils) Bhandar and the respondent No. 2 is also doing the business in the name of Ambika Steel. The respondent No. 2 was working at the shop of the applicant and had later on started his own business and used to purchase the goods in the name of the firm of the applicant, and towards the outstanding amount, cheque No. 503677 dated 10.12.2019 for an amount of Rs.10,00,000/- from his account with State Bank of India, Memnagar, Ahmedabad Branch was given. The cheque was deposited by the applicant in his account with the Ahmedabad Mercantile Cooperative Bank Limited, Memnagar, Ahmedabad Branch, but the cheque returned unpaid with the endorsement "Account Closed." The demand statutory notice was issued to the respondent No. 2, which was served to the respondent No. 2, but no reply was given and no payment within the stipulated period was made, and hence, the applicant has filed a complaint under Section 138 of the N.I. Act, 1881 before the Court of the Chief Judicial Magistrate, Ahmedabad Rural, which came to be registered as Criminal Case No. 1650 of 2020. The respondent No. 2 had appeared before the learned Trial Court, and after the plea of the respondent No. 2 was recorded, the applicant had submitted oral and documentary evidence before the learned Trial Court. Learned advocate for the applicant submits that the applicant has produced the original bills, by which the goods were purchased, at Exh. 38 and Exh. 165, and the bills were not disputed by the respondent No. 2. After the evidence of the applicant was closed, the further statement of the applicant under Section 313 of the Code of Page 2 of 3 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:23:20 IST 2025 NEUTRAL CITATION R/CR.MA/5785/2025 ORDER DATED: 28/04/2025 undefined Criminal Procedure, 1973 was recorded, and the respondent No. 2 did not step into the witness box but examined one witness to prove that he had closed the account prior to the issuance of the cheque. Learned advocate for the applicant submits that the bills were not disputed by the respondent No. 2, and even though the applicant had proved by the documentary evidence that the cheque was given for the legal enforceable due, the learned Trial Court has not appreciated the documentary evidence in proper perspective. Moreover, the defense of the respondent No. 2 is that the cheque was given towards insurance premium, but the said aspect has not been rebutted in the cross-examination of the applicant. Learned advocate for the applicant submits that the applicant has a good case on merits and the application seeking leave to appeal must be granted.
4. Learned APP Ms. Jirga Jhaveri for the respondent-State has submitted that the learned Trial Court has appreciated the evidence and has passed the impugned judgment and order and no interference is required. Hence, the application seeking leave to appeal may be rejected.
5. Considering the arguments canvassed by the learned advocate for the applicant as also on perusal of the copy of the paper book produced on record, prima facie, it appears that the documentary evidence has not been properly appreciated by the learned Trial Court. The application seeking leave to appeal deserves consideration, and consequently, the same is allowed.
(S. V. PINTO,J) VVM Page 3 of 3 Uploaded by VISHAL MISHRA(HC01088) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:23:20 IST 2025