Gujarat High Court
Dhanesh Devchandbhai Shah vs State Of Gujarat on 18 February, 2025
NEUTRAL CITATION
R/CR.MA/1233/2025 ORDER DATED: 18/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 1233 of
2025
In F/CRIMINAL APPEAL NO. 49719 of 2024
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DHANESH DEVCHANDBHAI SHAH
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DHARMESH V SHAH(1050) for the Applicant(s) No. 1
MS DRASHTI D SHAH(11443) for the Applicant(s) No. 1
MR KRUNAL A AGRAWAL(12812) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 3
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 18/02/2025
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 appeal against the order dated 12.06.2024 passed by the learned Additional Chief Metropolitan Magistrate, Court No. 28, Ahmedabad (hereinafter referred to as the learned Trial Court)in Criminal Case No. 4313 of 2022 , whereby the respondent Nos.2 and 3 - original accused have been acquitted for the offence under Section 138 of the Negotiable Instrument Act, 1881. (hereinafter referred to as the "NI, Act"). 1.1 The respondent Nos. 2 and 3 - original accused are hereinafter referred to as " the accused" as they stood in the rank and file of original Page 1 of 4 Uploaded by VISHAL MISHRA(HC01088) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:50:08 IST 2025 NEUTRAL CITATION R/CR.MA/1233/2025 ORDER DATED: 18/02/2025 undefined case for the sake of convenience, clarity and brevity.
2. The brief facts culled out from the memo of the present appeal as well as the record and proceedings are as under:-
2.1 The applicant is doing the business of Travels and owned luxury Bus No. GJ-01-AY-9945, Engine No. 797-TC-55-DTZ-118833 and Chesis No. 359277-DTC-005861. The accused wanted the bus for his business and decided to purchase the same for an amount of Rs.5,11,000/-
and a notarized agreement was executed on 24/09/2021 and the possession of the luxury bus was handed over on 05/01/2020. That some amount was paid and Cheque Nos. "729271" dated 18.01.2021 for Rs.1,50,000/- and Cheque Nos. "729272" dated 30.11.2021 for Rs.15,50,000/- both from the account of the accused with State Bank of India, Ramakaka Temple Road Branch, Vadodara were deposited by the complainant in his account and both the cheques returned unpaid with the endorsement "Today's opening balance Insufficient". The applicant gave the demand statutory notice on 10.12.2021 to the accused, which was duly served to the accused but the accused did not pay the amount and hence the applicant filed the complaint under Section 138 of the NI Act, before the Court of the Chief Metropolitan Magistrate, Ahmedabad. 2.2 The accused was duly served with the summons and the accused appeared and the plea of the accused was recorded and the evidence of Page 2 of 4 Uploaded by VISHAL MISHRA(HC01088) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:50:08 IST 2025 NEUTRAL CITATION R/CR.MA/1233/2025 ORDER DATED: 18/02/2025 undefined the applicant was taken on record. After the evidence of the applicant was closed, the further statement of the accused under Section 313 of the Code of Criminal Procedue, 1973 was recorded and after hearing the arguments of both the learned advocates, the learned Trial Court was pleased to acquit the accused for the offence under Section 138 of the N.I.Act.
3. Being aggrieved and dissatisfied with the judgment and order of learned Chief Metropolitan Magistrate, Ahmedabad, the applicant has preferred the present application seeking leave to appeal mainly stating that, the evidence is not properly appreciated by the learned trial Court and the applicant has good case on merits and hence leave to appeal must be granted.
4. Heard learned advocate Mr. Darshit Shah for the applicant and learned Additional Public Prosecutor Mr. Bharga Pandya, for the respondent State. Though served, the respondents have not appeared either in person or through an advocate. Perused the judgment and order passed by the learned Courts.
5. Learned advocate Mr. Darshit Shah for the applicant has reiterated the contents of the application and has submitted that the the applicant had produced all the documents including the agreement executing between the parties to prove that the cheques were issued for a legally Page 3 of 4 Uploaded by VISHAL MISHRA(HC01088) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:50:08 IST 2025 NEUTRAL CITATION R/CR.MA/1233/2025 ORDER DATED: 18/02/2025 undefined enforceable debt but the learned trial Court has not considered the same and hence and hence, leave to appeal must be granted.
7. Learned Additional Public Prosecutor, Mr. Bhargav Pandya for the respondent-State has submitted that the learned trial Court has appreciated all the evidence in proper perspective and no interference is required hence the application must be rejected.
8. On perusal of the judgments and orders of the learned trial Court and documents produced by the learned advocate in the form of paper book, it appears that the transaction for the luxury bus was between the parties and the notarized agreement was executed between the parties. The application has produced the transfer form of the vehicles and prima facie it appears that the learned advocate has not appreciated the documents in proper perspective. In view of the above, the issue requires consideration and the leave to appeal is required to be granted.
9. Consequently, the present application seeking leave to appeal is granted.
(S. V. PINTO,J) VVM Page 4 of 4 Uploaded by VISHAL MISHRA(HC01088) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:50:08 IST 2025