Gujarat High Court
Patel Jayeshbhai Kalidas vs Rabari Kanubhai Amrutbhai on 18 February, 2025
NEUTRAL CITATION
R/CR.MA/1088/2025 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. 1088 of
2025
In R/CRIMINAL APPEAL NO. 1913 of 2024
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PATEL JAYESHBHAI KALIDAS
Versus
RABARI KANUBHAI AMRUTBHAI & ANR.
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Appearance:
ADITYA A GUPTA(7875) for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 2
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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 30.04.2024 passed by the learned 4th Additional Sessions Judge, Mehsana acquitting the respondent No. 1 - original accused in Criminal Appeal No. 382 of 2023 filed by the respondent No. 1 accused against the impugned judgment and order dated 20.07.2023 passed by the learned Additional Chief Judicial Magistrate, Vijapur (hereinafter referred to as the learend Trial Court) in Criminal Case No. 490 of 2016 convicting and sentencing him for a period of six months for the offence under Section 138 of the Page 1 of 5 Uploaded by VISHAL MISHRA(HC01088) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:50:04 IST 2025 NEUTRAL CITATION R/CR.MA/1088/2025 ORDER DATED: 18/02/2025 undefined Negotiable Instrument Act, 1881. (hereinafter referred to as the "NI, Act").
1.1 The respondent No. 1 is hereinafter referred to as " the accused" as he stood in the original 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 was known to the accused and the accused required some financial assistance for his business and the applicant had given an amount of Rs.23,00,000/- to the accused. The accused issued Cheque No. 538266 dated 04.02.2013 for Rs. 23,00,000/- from his account with the South Indian Bank Limited and the cheque was deposited by the applicant in his account with Bank Of India, Vijapur Branch, but the cheque returned unpaid with an endorsement " Account Closed" on 06.02.2013. The applicant gave the demand statutory notice through RPAD on 26.02.2013, which was duly served to the accused on 12.03.2013 but the accused did not pay the amount and hence the applicant filed the complaint under Section 138 of the Negotiable Instruments Act, 1881 before the Court of the Additional Chief Judicial Magistrate, Vijapur, which was registered as Criminal Case No. 490 of Page 2 of 5 Uploaded by VISHAL MISHRA(HC01088) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:50:04 IST 2025 NEUTRAL CITATION R/CR.MA/1088/2025 ORDER DATED: 18/02/2025 undefined 2016.
2.2 The accused was duly served with the summons and the accused appeared and the plea of the accused was recorded at Exh. 6 and the evidence of 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 Procedure, 1973 was recorded and after hearing the arguments of both the learned advocates, the learned Additional Chief Judicial Magistrate, Vijapur was pleased to convict the accused and sentence him to simple imprisonment for six months for the offence of under Section 138 of the N.I.Act. The learned trial Court was pleased to order that the accused pay an amount of Rs.23,00,000/- as compensation to the applicant.
3. Being aggrieved and dissatisfied with the impugned judgment and order of conviction, the accused filed Criminal Appeal No. 387 of 2023 before the learned Sessions Court, Mehsana and after the arguments of learned advocates for both the parties were heard, the learned 4 th Additional Sessions Judge, Mehsana was pleased to allow the appeal and set aside the judgment and order passed by the learned Additional Chief Judicial Magistrate, Vijarapur in Criminal Case No. 490 of 2016, on 20.03.2023.
4. Being aggrieved and dissatisfied with the order of learned 4th Page 3 of 5 Uploaded by VISHAL MISHRA(HC01088) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:50:04 IST 2025 NEUTRAL CITATION R/CR.MA/1088/2025 ORDER DATED: 18/02/2025 undefined Additional Sessions Judge, Mehsana, the applicant has preferred the present application seeking leave to appeal mainly stating that, the evidence is not being properly appreciated by the learned Sessions Judge and the applicant has a good case on merits and hence leave to appeal must be granted.
5. Heard learned advocate Mr. Aditya A Gupta for the applicant and learned Additional Public Prosecutor Mr. Bharga Pandya, for the respondent State. Though served, the respondent No.1 has not appeared either in person or through an advocate. Perused the judgment and order passed by the learned trial Court as well as the judgment and order passed by the learned Sessions Court.
6. Learned advocate Mr. Aditya Gupta for the applicant has reiterated the contents of the application and has submitted that the learned trial Court had properly appreciated the evidence and had convicted the applicant but the learned Sessions Judge, Mehsana has not considered the evidence in proper perspective. The applicant had proved that the amount was given and considering the evidence, the applicant has good case on merits, 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 and the learned Sessions Judge has appreciated all the evidence in a different manner and Page 4 of 5 Uploaded by VISHAL MISHRA(HC01088) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:50:04 IST 2025 NEUTRAL CITATION R/CR.MA/1088/2025 ORDER DATED: 18/02/2025 undefined the issue requires consideration and hence appropriate orders may be passed.
8. On perusal of the judgments and orders of the learned trial Court as well as learned 4th Additional Sessions Judge, Mehsana, the same evidence has been appreciated by both the learned Courts in a different manner. The learned Sessions Judge has considered that the learned Trial Court has not considered the defense of the accused that the cheque was not issued in discharge of legally enforceable debt and the facts have not been properly appreciated. 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 5 of 5 Uploaded by VISHAL MISHRA(HC01088) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:50:04 IST 2025