Gujarat High Court
Cholamandalam Investment And Finance ... vs Jayesh Mansukh Gadhavi on 7 August, 2025
NEUTRAL CITATION
R/CR.MA/15885/2025 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. 15885
of 2025
In F/CRIMINAL APPEAL NO. 31433 of 2025
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CHOLAMANDALAM INVESTMENT AND FINANCE COMPANY LTD. - UMAR
MAHAMADBHAI LULIYA
Versus
JAYESH MANSUKH GADHAVI & ANR.
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Appearance:
MR PM DAVE(263) 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 : 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 08.07.2025 passed by the Court of Additional Judicial Magistrate, Gandhidham-Kachchh (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 1772 of 2024, 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 - 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. P.M.Dave appearing for the applicant, and learned APP Ms. Chetna Shah for the respondent No. 2 - State.
3. Learned advocate Mr. P.M.Dave for the applicant submits that the applicant is a Non-Banking Finance Company and the respondent No. 1 had taken a loan of Rs. 66,500/- from the applicant - company and towards the outstanding amount of Rs.66853/- had issue a cheque No. "000001" dated 06.06.2023 from their account with Bank of Baroda, Darsadi Branch. The cheque was deposited by the applicant - company in his account with I.C.I.C.I. Bank Limited, Gandhidham Branch and the cheque returned unpaid with the endorsement " Funds Insufficient". The demand statutory notice was issued to the respondent No. 2, which was duly served to the respondent No.2 but the respondent No. 2 did not make the payment within the stipulated period and hence, the applicant - company filed the criminal complaint under Section 138 of the NI Act before the Court of the Chief Judicial Magistrate, Gandhidham-Kachchh, which was registered as Criminal Case No. 1722 of 2024. The respondent No. 1 was duly served with the summons and the respondent No. 1 appeared before the learned Trial Court through his advocate and plea of the respondent No. 1 was recorded at Exh. 9. The applicant-company filed its affidavit of examination-in-chief at Exh.6 and after the respondent No. 1 appeared before the learned trial Court, talks of Page 2 of 4 Uploaded by VISHAL MISHRA(HC01088) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:44:15 IST 2025 NEUTRAL CITATION R/CR.MA/15885/2025 ORDER DATED: 07/08/2025 undefined compromise were going on between the parties. During the trial, the authorized signatory, who had filed the complaint on behalf of the company, had resigned and the applicant preferred an application at Exh. 15 for substitution of the new officer, but the learned trial Court, by the impugned judgment and order dated 08.07.2025 was pleased to dismiss the complaint for default under Section 256 (1) of the Code of Criminal Procedure, 1973 for non-prosecution and acquit the respondent No. 1 from the offence under Section 138 of the NI Act. Learned advocate for the applicant further submits that the learned trial Court was pleased to impose a cost of Rs.5000/- on the learned advocate for the applicant to be deposited before the Taluka Legal Services Committee, Gandhidham within a period of 30 days from the date of the order. Learned advocate for the applicant submits that the affidavit of examination in chief and the documentary evidence were on record but the learned trial Court did not appreciate the same in proper perspective and passed the impugned order which is illegal and perverse. Learned advocate further 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 Page 3 of 4 Uploaded by VISHAL MISHRA(HC01088) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:44:15 IST 2025 NEUTRAL CITATION R/CR.MA/15885/2025 ORDER DATED: 07/08/2025 undefined applicant.
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 (1) 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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