Gujarat High Court
Vishalsinh Rajendrasinh Bihola vs Bhaveshkumar Manubhai Prajapati on 5 August, 2025
NEUTRAL CITATION
R/CR.MA/9817/2025 ORDER DATED: 05/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 9817 of
2025
In F/CRIMINAL APPEAL NO. 7640 of 2025
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VISHALSINH RAJENDRASINH BIHOLA
Versus
BHAVESHKUMAR MANUBHAI PRAJAPATI & ANR.
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Appearance:
MR KEYUR A VYAS(3247) for the Applicant(s) No. 1
MS. CHETNA SHAH, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 05/08/2025
ORAL ORDER
1. The present application is filed by the applicant - original complainant under Section 419 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as "the BNSS") seeking leave to appeal against the judgment and order dated 12.12.2024 passed by the learned 3rd Additional Sessions Judge, Gandhinagar (hereinafter referred to as the " the learned appellate Court) acquitting the respondent No. 1 in Criminal Appeal No. 163 of 2024 filed by the respondent No. 1 challenging the judgment and order of conviction passed by the learned Judicial Magistrate First Class, Mansa in ( hereinafter referred to as "the learned Trial Court) in Criminal Case No. 362 of 2021 for the offence under Section 138 of the Negotiable Instrument Act, 1881. (hereinafter referred to as the NI Act).
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2. Heard learned advocate Mr. Keyur Vyas for the applicant and learned APP Ms. Chetna Shah for the respondent No.1 - State.
3. Learned advocate Mr. Keyur Vyas for the applicant submits that the applicant and the respondent No. 1 were known to each other and were friends. The respondent No. 1 was in need of some finance and requested the applicant to advance some amount and the applicant had given hand loan of Rs. 5,50,000/- to the respondent No. 1, which was to be returned within a period of six months. The respondent No. 1 had issued cheque No. "102691" dated 10.03.2021 for an amount of Rs.5,50,000/- from his account with Canara Bank, Jaliyano Math Branch, Gandhinagar. The cheque was deposited by the applicant in his account with Bank of India, Mansa Branch but the cheque returned unpaid with the endorsement " kindly contact the drawer / drawee bank and please present again" . The applicant sent demand statutory notice which was duly served to the respondent No. 1. The respondent No.1 filed an evasive reply but did not repay the amount within stipulated period and hence, the applicant filed a criminal complaint under Section 138 of the NI Act before the Court of the learned Judicial Magistrate First Class, Mansa, which came to be registered as Criminal Case No. 362 of 2021.
After the respondent No. 1 was duly served with the summons, he
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NEUTRAL CITATION
R/CR.MA/9817/2025 ORDER DATED: 05/08/2025
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appeared before the learned trial Court and the applicant has submitted his affidavit of examination-in-chief at Exh.5 and produced twelve documentary evidence in support of his case. After the closing pursis of the applicant was filed, the further statement under Section 313 of the Cr.P.C was recorded, wherein, the respondent No. 1 denied all the allegations and stated that the cheque in question has been misused by the applicant. The respondent No.1 examined one witness at Exh.33 and produced two documentary evidence in support of his case. After the arguments of the learned advocates for both parties were heard, the learned trial Court, by a judgement and order dated 24.04.2024 was pleased to convict the respondent No. 1 for the offence of under Section 138 of N.I.Act and sentence the respondent No. 1 to simple imprisonment for a period of six months and ordered the respondent No. 1 to pay an amount of Rs.5,50,000/- within a period of two months from the date of the order as compensation to the applicant and in default to undergo simple imprisonment for three months.
3.1 Being aggrieved and dissatisfied with the judgment and order of conviction, the respondent No. 1 filed Criminal Appeal No. 163 of 2024 before the Court of learned Sessions Judge, Gandhinagar and after the arguments of the learned advocates for both the parties were heard, the learned 3rd Additional Sessions Judge, Gandhinagar, by the impugned Page 3 of 5 Uploaded by VISHAL MISHRA(HC01088) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:19:27 IST 2025 NEUTRAL CITATION R/CR.MA/9817/2025 ORDER DATED: 05/08/2025 undefined judgement and order dated 12.12.2024, was pleased to allow the appeal and acquit the respondent No. 1 for the offence under Section 138 of the NI Act.
4. Learned advocate for the applicant further submits that the learned trial Court has appreciated all the evidence and the applicant had proved by documentary evidence, his financial capacity to advance the amount of Rs.5,50,000/- and the defence taken by the respondent No. 1 was that the cheque in question was given to his brother, which was misused by the applicant. The defence was not proved and the presumption has not been rebutted, but the learned appellate Court, without properly appreciating the evidence, concluded that the presumption was rebutted and the applicant did not have the financial capacity to advance the amount to the respondent No.1. Learned advocate for the applicant submits that the applicant has good case on merits and the application seeking leave to appeal must be granted.
5. Learned APP Ms. Chetna Shah for the respondent No.2 - State submits that learned appellate Court has appreciated all the evidence and no interference is required and hence the application may be rejected.
6. Considering the submissions advanced by the learned advocate for the applicant as also on perusal of the impugned judgment and order passed by the learned Sessions Judge, Gandhinagar and the judgment and Page 4 of 5 Uploaded by VISHAL MISHRA(HC01088) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:19:27 IST 2025 NEUTRAL CITATION R/CR.MA/9817/2025 ORDER DATED: 05/08/2025 undefined order of conviction passed by the learned trial Court, prima-facie, it appears that the same set of evidence have been appreciated by two Courts in a different manner and hence, the issue requires consideration. Hence, the application seeking leave to appeal deserves consideration. Consequently, the same is allowed.
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