Gujarat High Court
Dharmendrabhai Parshotambhai Gayjan vs Dilipbhai Maganbhai Desai on 18 February, 2025
NEUTRAL CITATION
R/CR.MA/21842/2024 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. 21842
of 2024
In F/CRIMINAL APPEAL NO. 41264 of 2024
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DHARMENDRABHAI PARSHOTAMBHAI GAYJAN
Versus
DILIPBHAI MAGANBHAI DESAI & ANR.
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Appearance:
NISHITH P ACHARYA(9308) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
MS. JIRGA JHAVERI, APP 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 Bharatiya Nagarik Surakhsha Sanhita, 2023 seeking leave to file an appeal against the judgment and order dated 31.08.2024 passed by the learned Judicial Magistrate First Class in Criminal Case No. 236 of 2024, whereby the original accused - respondent no. 1 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.1 is hereinafter Page 1 of 4 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:50:46 IST 2025 NEUTRAL CITATION R/CR.MA/21842/2024 ORDER DATED: 18/02/2025 undefined referred to as "the accused" as he stood in the original case for the sake of convenience, clarity and brevity.
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 - Shree Bagasara Nagrik Sharafi Sahkari Mandali Limited, Amreli and the accused had taken Hypothecation Cash Credit Loan of Rs.1,00,000/- at the rate of 18% on 06.10.2020. That the accused had given cheque no. 100062 drawn on Amreli Jilla Madhyastha Sahkari Bank, Branch - Liliya Mota dated 01.03.2024 and the said cheque was deposited by the applicant, which returned unpaid with the endorsement "Funds Insufficient"
on 01.03.2024. The applicant gave the statutory demand notice through his advocate, which was duly served to the accused but, the accused did not give any reply to the said notice 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 Judicial Magistrate First Class, Liliya.
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NEUTRAL CITATION R/CR.MA/21842/2024 ORDER DATED: 18/02/2025 undefined 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 has examined two witnesses and produced 12 documentary evidences in support of his case and after the closing pursis was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein, the accused stated that applicant denied the contents of the complaint and pleaded that he is innocent. The arguments of the learned advocates for both the parties were heard and by the judgment and order passed, the learned Trial Court has acquitted the accused for the offence under Section 138 of the Act.
4. Being aggrieved and dissatisfied with the the judgment and order dated 31.08.2024 passed by the learned Judicial Magistrate First Class in Criminal Case No. 236 of 2024, the applicant has preferred the present application seeking leave to appeal.
5. Heard learned advocate Mr. Nishith Acharya for the Page 3 of 4 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:50:46 IST 2025 NEUTRAL CITATION R/CR.MA/21842/2024 ORDER DATED: 18/02/2025 undefined applicant and learned APP Ms.Jirga Jhaveri for the respondent State. Though served, the respondent no. 1 is not present before this Court either in person or through an advocate.
6. On perusal of the impugned judgment and order of acquittal passed by the learned Judicial Magistrate First Class, Liliya it appears that the applicant has produced the statement of accounts of the applicant bank and the accused has also produced the document of his accounts. The learned Trial Court has appreciated the documents and the accused has stated that the cheque has been deposited without his knowledge. Prima-facie, it appears that the Hypothecation Cash Credit Loan was taken by the accused and the documents produced on record are required to be considered and appreciated, and hence, the present application deserves consideration. According, the application seeking leave to file an appeal is allowed.
(S. V. PINTO,J) VASIM S. SAIYED Page 4 of 4 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:50:46 IST 2025