Gujarat High Court
Vishnubhai Jerambhai Desai vs State Of Gujarat on 7 August, 2025
NEUTRAL CITATION
R/CR.MA/12516/2025 ORDER DATED: 07/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 12516
of 2025
In F/CRIMINAL APPEAL NO. 23723 of 2025
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VISHNUBHAI JERAMBHAI DESAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR TANMAY B KARIA(6833) for the Applicant(s) No. 1
MS. CHETNA SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/08/2025
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 "B.N.S.S.") seeking leave to file an appeal against the order dated 23.04.2025 passed by the learned 6 th Additional Chief Judicial Magistrate, Ahmedabad (Rural) (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 14364 of 2023, 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 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").
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2. Heard learned advocate Mr. Tanmay B Karia appearing for the applicant and learned APP Ms. Chetna Shah for the respondent No. 2 - State. Perused the impugned judgment and order and paper book filed by the learned advocate for the applicant.
3. Learned advocate Mr. Tanmay Karia for the applicant submits that the applicant and the respondent No. 2 were friends and the daughter of the respondent No. 2 was to get married and the respondent No. 2 was in need of some finance and had requested the applicant for an amount of Rs.4,00,000/- which was given as a hand loan. Towards the outstanding amount the respondent No. 2 issued checque No. "009396" dated 28.6.2022 for Rs.2,00,000/- and cheque No. "009397" dated 30.6.2022 for Rs. 2,00,000/- from his account with the Mahila Vikas operative bank limited, Bhatta Vasna, Ahmedabad Branch. The Cheques were deposited by the applicant in his account with Ahmedabad District Cooperative Bank Limited, Ahmedabad Branch but the cheques returned unpaid with the endorsement "Funds Insufficient". The demand statutory notice was given, which was duly served to the respondent No. 2 but amount was not being paid within the stipulated period and hence the applicant filed a criminal complaint under Section 138 of the Negotiation Instruments Act, before the Court of learned Chief Metropolitan Magistrate, which came to be registered as per Criminal Case No. 14364 of 2023. The learned Trial Page 2 of 4 Uploaded by VISHAL MISHRA(HC01088) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:43:54 IST 2025 NEUTRAL CITATION R/CR.MA/12516/2025 ORDER DATED: 07/08/2025 undefined Court was pleased to take cognizance and issue summons to the respondent No. 2 abd the summons had been served to the respondent No. 2 and he appeared before the learned trial Court. Thereafter the respondent No. 2 did not appear and his plea could not be recorded but the applicant had filed the affidavit of examination-in-chief at Exh. 4 and had also given an application at Exh.5 for exhibiting the documents which were vide a list at Exh. 3. The application at Exh.5 was kept "fixed for hearing" and during this time, the applicant or his learned advocate did not remain present before learned trial Court and the learned trial Court was pleased to pass the impugne order below Exh.1 and dismiss the complaint for default. Learned advocate for the applicant submits that the affidavit of examination-in-chief and the documents were on record and the same have not been appreciated in a proper perspective. 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. Chetna Shah for the respondent No 1 - State and has submitted that necessary orders may be passed after perusing the copy of the Rojkam produced on record by the learned advocate for the applicant.
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5. Considering the submissions of learned advocate for the applicant as also the copy of the Rojkam produced on record by the learned advocate for the applicant, it appears that the entire evidence of the applicant including the affidavit of examination in chief and the documentary evidence were produced on record, but the learned Trial Court has not appreicated the same in proper perspective and has passed the impugned order under Section 256 of the Code of Criminal Procedure, 1973 and hence, the application seeking leave to appeal deserves consideration. Consequently, the same is allowed.
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