Gujarat High Court
Tusharbhai Ambalal Shah vs State Of Gujarat on 17 February, 2025
NEUTRAL CITATION
R/CR.MA/13189/2024 ORDER DATED: 17/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATIONNO. 13189 of 2024
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 18320 of 2024
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TUSHARBHAI AMBALAL SHAH
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR DARSHAN B GANDHI(9771) 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 : 17/02/2025
ORAL ORDER
1. The present application is filed by the applicant - original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") seeking leave to file an appeal against the judgment and order dated 20.03.2024 passed by the learned Principal Judge, City Sessions Court, Ahmedabad in Criminal Appeal No.586 of 2018, whereby, the original accused - respondent No.2 herein came to be acquitted from the charge levelled against him under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the 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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NEUTRAL CITATION R/CR.MA/13189/2024 ORDER DATED: 17/02/2025 undefined
3. The brief facts culled out from the memo of the present application as well as the impugned judgment and order are as under:
3.1. The applicant had given friendly loan of Rs.2,50,000/-
to the accused and the accused had given two cheques No.736416 and 296102 for an amount of Rs.1,50,000/- each with Central Bank of India, Lati Bazar, Ahmedabad and Bank of Baroda, Gandhi Road, Ahmedabad. Both the cheques were deposited by the applicant in his account and the cheques returned unpaid with the endorsement "Finds Insufficient". The applicant gave the statutory demand notice through his advocate but the accused did not give any reply and did not pay the amount and hence, the applicant filed the complaint under Section 138 of the N.I.Act before the court of the Additional Chief Metropolitan Magistrate, Negotiable Instrument Act, Court No.35, Ahmedabad.
3.2. 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 applicant was examined on oath and 06 documentary evidences were produced in support of his case and after the closing pursis was filed, the further statement of the accused Page 2 of 4 Uploaded by F.S. KAZI(HC01075) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:29:14 IST 2025 NEUTRAL CITATION R/CR.MA/13189/2024 ORDER DATED: 17/02/2025 undefined under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused stated that applicant had filed a false complaint and pleaded that he is innocent. The arguments of the learned advocates for both the parties were heard and by a judgment and order passed in Criminal Case No. 127 of 2016, the learned Additional Chief Metropolitan Magistrate, Negotiable Instrument Act, Court No.35, Ahmedabad convicted the accused for the offence under Section 138 of the Act on 25.09.2018.
3.3 Being aggrieved and dissatisfied with the judgment and order of conviction dated 25.09.2018 passed in in Criminal Case No. 127 of 2016 by the learned Additional Chief Metropolitan Magistrate, Negotiable Instrument Act, Court No.35, Ahmedabad, the accused preferred Criminal Appeal No, 586 of 2018 before the City Sessions Court, Ahmedabad and after hearing both the parties, the learned Principal Judge, City Sessions Court, Ahmedabad was pleased to set aside the judgment and order of conviction passed by the learned Additional Chief Metropolitan Magistrate, Negotiable Instrument Act, Court No.35, Ahmedabad in Criminal Case No. 127 of 2016 on 25.09.2018 and acquitted the accused from offence punishable under Section 138 of the N.I.Act. Page 3 of 4 Uploaded by F.S. KAZI(HC01075) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:29:14 IST 2025
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4. Being aggrieved and dissatisfied with the judgment and order dated 20.03.2024 passed in Criminal Appeal No. 586 of 2018 by the learned Principal Judge, City Sessions Court, Ahmedabad, the applicant has preferred the present application seeking leave to appeal.
5. Heard learned advocate Mr.Darshan Gandhi for the applicant and learned APP Ms.Jirga Jhaveri for the respondent No.1 - State.
6. On perusal of the impugned judgment and order of acquittal passed by the learned Principal Judge, City Sessions Court, Ahmedabad and also the judgment and order of conviction passed by the learned Additional Chief Metropolitan Magistrate, Negotiable Instrument Act, Court No.35, Ahmedabad, it appears that both the orders have been passed by appreciating the same evidence, and hence, the present application requires consideration, and according, the application seeking leave to appeal is allowed.
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