Gujarat High Court
Yunus Hanifbhai Sheikh vs Gayakwad Satishkumar Samuel on 3 July, 2025
NEUTRAL CITATION
R/CR.MA/10930/2025 ORDER DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 10930
of 2025
In F/CRIMINAL APPEAL NO. 20744 of 2025
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YUNUS HANIFBHAI SHEIKH
Versus
GAYAKWAD SATISHKUMAR SAMUEL & ANR.
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Appearance:
LUV S SHAH(9365) for the Applicant(s) No. 1
MS. CHETNA SHAH, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 03/07/2025
ORAL ORDER
1. The present application is filed by the applicant - original complainant seeking leave to appeal against the order dated 25.04.2025 passed by the Court of 11TH Additional Metropolitan Magistrate, Negotiable Instrument Act, Court No. 31, Ahmedabad, (hereinafter referred to as the learned trial Court) acquitting the respondent - No. 1 in Criminal Case No. 7692 of 2021 filed by the applicant for the offence under Section 138 of the 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.
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2. Heard learned advocate Mr. Luv S. Shah for the applicant and learned Additional Public Prosecutor Ms. Chetna Shah for the respondent No. 2 - 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 paper book submitted by the learned advocate for the applicant.
3. Learned advocate Mr. Luv S Shah for the applicant submits that the applicant and the respondent No. 1 were known to each other and the respondent No. 1 was in need of money and during 05.04.2017 to 27.04.2017, the applicant had advanced an amount of Rs.1,50,000/- and thereafter a further amount of Rs.90,000/- was given to the respondent No. 1 on 28.12.2017. In all, the total amount of Rs.2,40,000/- was outstanding to be taken from the respondent No. 1 and a notarized agreement was executed between the parties and a promissory note was also written by the respondent No.1. The respondent No. 1 gave a cheque "491510" dated 10.11.2020 for the amount of Rs.2,40,000/- from his account with State Bank of India, Sabarmati Branch and the cheque was deposited by the applicant in his account with State Bank of India, Sabarmati Branch, but the said cheque returned unpaid with the endorsement "Funds Insufficient". The demand statutory notice was Page 2 of 5 Uploaded by VISHAL MISHRA(HC01088) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:29:13 IST 2025 NEUTRAL CITATION R/CR.MA/10930/2025 ORDER DATED: 03/07/2025 undefined given to the respondent No. 1, which was served to the respondent No.1. However, the respondent No. 1 did not submit any reply and did not repay the amount within stipulated time and hence the criminal complaint was filed under Section 138 of the N.I.Act, which was registered as Criminal Case No. 7692 of 2021 before the Court of the Chief Metropolitan Magistrate, Ahmedabad. After, the respondent No. 1 was duly served with the summons, he appeared before the learned trial Court and his plea was recorded and the applicant submitted the affidavit of examination in chief and produced oral and documentary evidence including the deed executed between the parties at Exh.13 and the promissory note at Exh. 14. During the proceedings, as the applicant was demanding his outstanding amount from the respondent No. 1, the respondent No. 1 preferred an application against the applicant in the Sabarmati Police Station and the statements of the applicant as also the respondent No. 1 have also been recorded during the police inquiry and thereafter it was agreed upon that the outstanding amount will be repaid by the respondent No. 1 in installments of Rs.5000/- each and the application of the respondent No. 1 was filed and disposed of. The respondent No. 1 did not clear the outstanding amount and after the applicant had submitted his affidavit of examination in chief, a part of cross examination was undertaken by the learned advocate for the Page 3 of 5 Uploaded by VISHAL MISHRA(HC01088) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:29:13 IST 2025 NEUTRAL CITATION R/CR.MA/10930/2025 ORDER DATED: 03/07/2025 undefined respondent No. 1. Learned advocate for the applicant submits that thereafter, the respondent No. 1 did not appear before the learned trial Court and did not produced any evidence nor stepped into the witness box and after the arguments of the learned advocate for the respective parties were heard, the learned trial Court, by the impugned judgment and order, was pleased to acquit the respondent No. 1 from the offence under Section 138 of the NI Act. Learned advocate submits that the applicant has a good case on merits and has submitted that the applicant had proved from the oral and documentary evidence that the amount of Rs.2,40,000/- was outstanding amount but the learned trial Court did not appreciate the evidence in proper perspective and hence the application seeking leave to appeal must be granted.
4. Learned Additional Public Prosecutor, Ms. Chetna Shah appearing for the respondent No. 1 - State has submitted that learned trial Court has appreciated the evidence in proper perspective and no interference is required in the impugned judgment and order passed by the learned trial Court and hence the application seeking leave to appeal must be rejected.
5. Considering the submissions advanced by the learned advocate for the applicant as also on perusal of the impugned judgment and order and Page 4 of 5 Uploaded by VISHAL MISHRA(HC01088) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:29:13 IST 2025 NEUTRAL CITATION R/CR.MA/10930/2025 ORDER DATED: 03/07/2025 undefined the paper book submitted by the learned advocate for the applicant, prima
- facie, it appears that the learned trial Court has not appreciated the documents in proper perspective and hence, the application seeking leave to appeal deserves consideration and the same is allowed.
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