Gujarat High Court
Kishorbhai Babubhai Satasiya vs State Of Gujarat on 5 February, 2025
NEUTRAL CITATION
R/CR.MA/14697/2023 ORDER DATED: 05/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 14697 of 2023
(FOR LEAVE TO APPEAL)
In
R/CRIMINAL APPEAL NO. 1976 of 2023
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KISHORBHAI BABUBHAI SATASIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR NIKUNJ SAVALIYA(12918) for the Applicant(s) No. 1
MR RATILAL V SAKARIA(6613) for the Applicant(s) No. 1
MR BHARGAV PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 05/02/2025
ORAL ORDER
1. The present application is filed by the applicant - original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 seeking leave to file an appeal against the judgment and order dated 01.04.2023 passed by the learned 7 th Additional Judicial Magistrate, Gandhinagar in Criminal Case No. 97 of 2020, whereby, the respondent No.2 - original accused came to be acquitted from the charge levelled against him under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as "N.I.Act"). The respondent No.2 is hereinafter referred to as "the accused" as he stood in the original case for the sake of convenience, clarity and brevity.
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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 is in the agricultural business and the accused is doing the business of seasonal food in the name of "Tarang Trading Company". That the accused wanted some amount for development of his business and the applicant gave the amount of Rs.26,00,000/- till 01.04.2018 and an amount of rs.25,00,000/-
from 01.04.2018 to 28.02.2019 and in all, an amount of Rs.51,00,000/- was given to the accused. That when the applicant demanded the amount, the accused gave Cheque No.000071 of Rs.26,00,000/- and Cheque No.000072 of Rs.25,00,000/-. That both the cheques dated 31.07.2019 were of HDFC bank, Galaxy Avenue, Galaxy Cinema, Naroda Branch and also executed an agreement on a stamp paper of Rs.100/- on 07.03.2019. That both the cheques were deposited in the account of the applicant with Canara Bank, Kundasan Branch on 29.10.2019 for clearing and both the cheques returned with the endorsement of "funds insufficient" on 30.10.2019. The applicant gave a statutory demand notice through his advocate on 25.11.2019, which was duly served tot he accused on 26.11.2019 and the accused did not sent any reply nor repaid the amount, and hence, the complainant filed the complaint under Page 2 of 5 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 01:00:00 IST 2025 NEUTRAL CITATION R/CR.MA/14697/2023 ORDER DATED: 05/02/2025 undefined Section 138 of the N.I.Act before the learned Additional Chief Judicial Magistrate, Gandhinagar.
2.2 The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded and the evidence of the applicant was taken on record. The complainant examined himself as a witness at Exh. 4 and produced 15 documentary evidences and after the closing pursis was filed, the further statement of the accused was recorded under Section 313 of the Code of Criminal Procedure. After the arguments of the learned advocate for the applicant and the learned advocate for the accused were heard and the learned Trial Court was pleased to acquit the accused from the offence under Section 138 of the N.I.Act.
3. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the applicant has preferred the present leave to appeal mainly stating that the accused had taken the amount and had issued two cheques, which have returned unpaid but, the learned Trial Court has not appreciated the evidence properly. The applicant has stated that the agreements were executed and the accused has not repaid the amount, and hence, the leave to appeal must be granted. Page 3 of 5 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 01:00:00 IST 2025
NEUTRAL CITATION R/CR.MA/14697/2023 ORDER DATED: 05/02/2025 undefined
4. Heard learned advocate Mr.Nikunj Savaliya for the applicant and learned APP Mr.Bhargav Pandya for the respondent State.
5. Learned advocate Mr.Nikunj Savaliya for the applicant has submitted that the complainant has proved that he had loaned amount to the accused and two cheques signed by the accused were given him and the agreement in the presence of two witnesses has been executed and has also been signed by the accused but, the learned Trial Court has not appreciated the evidence in proper perspective. The learned Trial Court has concluded that the cheques were of "Tarang Trading Company"
but, has not considered that the accused was the proprietor of "Tarang Trading Company" and he has issued the cheques and has wrongly appreciated the evidence, and hence, the leave to appeal may be allowed.
6. Learned APP Mr. Bhargav Pandya has submitted that the learned Trial Court has considered the oral and documentary evidence and has passed the impugned judgement and order of acquittal and no interference is required and hence, leave to appeal must not be granted.
7. On perusal of the impugned judgment and the submissions of Page 4 of 5 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 01:00:00 IST 2025 NEUTRAL CITATION R/CR.MA/14697/2023 ORDER DATED: 05/02/2025 undefined the learned advocate for the applicant, prima-facie it appears that the documents produced at Exh.13 was executed between the parties and the agreement was executed in the presence of the Notary and the witnesses. As far as the agreement at Exh.13 is concerned, in the statement under Section 313 of the Cr.P.c., the accused has stated that the agreement is false and against the law but the accused has not stepped into witness box or examined any witnesses and has not shown how the agreement is false or under what circumstances, the agreement has been executed. Prima- facie, the documents produced by the applicant on record have not been appreciated in the true perspective by the learned Trial Court, and hence, the application deserves consideration.
8. In the peculiar facts and circumstances of the case, in the considered opinion of this Court, the leave to appeal must be granted, and consequently, the application is granted and is disposed of accordingly.
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