Gujarat High Court
Mukeshbhai Mafatlal Patel vs State Of Gujarat on 3 July, 2025
NEUTRAL CITATION
R/CR.MA/9897/2024 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. 9897 of
2024
In F/CRIMINAL APPEAL NO. 36369 of 2023
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MUKESHBHAI MAFATLAL PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR JIGAR L PATEL(11596) for the Applicant(s) No. 1
MR AFTABHUSEN ANSARI(5320) for the Respondent(s) No. 2
MS. CHETNA SHAH, APP for the Respondent(s) No. 1
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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 file an appeal against the order dated 22.06.2023 passed by the Court of learned 5th Sessions Judge, Surat (hereinafter referred to as the "learned Trial Court") in Criminal Appeal No. 68 of 2022, whereby, the learned trial Court has acquitted the respondents - accused from the offence under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the "
N.I.Act").
2. Heard learned advocate Mr. Jigar L. Patel appearing for the applicant, learned APP Ms. Chetna Shah for the respondent No.1- State and learned advocate Ms.Helly Makwana for learned advocate Mr. Aftabhusen Ansari appearing for the respondent No.2.
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3. Learned advocate Mr. Jigar L. Patel for the applicant submits that the applicant is doing the business of cloth in the name and style of Ganpati Textile and the respondent No. 2 was known to the applicant and was in need of Rs.20,00,000/- and the applicant had advanced an amount of Rs.20,00,000/-. The respondent No. 2 had executed the promissory note on 19.11.2018 and had issued Cheque No. "177880" dated 26.06.2019 for the amount of Rs.20,00,000/- from his account with Sutex Co.Op.Bank Ltd., Salabatpura Branch, Surat. The cheque was deposited by the applicant in his account with Prime Co.Op.Bank. Ltd, Pandesara Branch, Surat but the cheque returned unpaid with the endorsement "Funds Insufficient". The demand statutory notice was given, which was duly served to the respondents but the respondent No. 2 did not repay the amount within the stipulated period, and hence, the applicant has filed the criminal complaint under Section 138 of the NI Act before the Court of the Chief Judicial Magistrate, Surat, which came to be registered as Criminal Case No. 42586 of 2019. After the respondent No. 2 was duly served with the summons, his plea was recorded and the applicant stepped into the witness box and deposed on oath and also examined two witnesses and produced eighteen documentary evidences to support of his case. After the closing pursis was filed, the further statement of the respondent No. 2 under Section 313 of the Code of Criminal Procedure, Page 2 of 4 Uploaded by VISHAL MISHRA(HC01088) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:30:32 IST 2025 NEUTRAL CITATION R/CR.MA/9897/2024 ORDER DATED: 03/07/2025 undefined 1973 was recorded and after the hearing arguments of the learned advocates for the respective parties were heard, learned trial Court, by judgment and order dated 21.01.2022, was pleased to convict the respondent No. 2 for the offence under Section 138 of the NI Act and sentenced the respondent No. 2 to simple imprisonment for eighteen months. The learned trial court was also pleased to order to pay an amount of Rs.40,00,000/- as compensation to the applicant under Section 357(3) of the Code of Criminal Procedure, 1973. Being aggrieved and dissatisfied by the judgment and order of conviction, the respondent No. 2 filed an appeal being Criminal Appeal No. 68 of 2022 before the Court of Sessions Judge, Surat and by the impugned judgment and order, the learned 5th Additional Sessions Judge, Surat was pleased to allow the appeal and quashed and set aside the judgment and order of conviction. Learned advocate for applicant submits that the applicant had proved the legally enforceable due by documentary and oral evidence and has also examined two witnesses in support of his case and all the evidences was properly appreciated by the learned trial Court. During the cross examination, the respondent No. 2 could not rebut the presumption and even through the offence was proved, the learned Sessions Judge did not appreciate the same in proper perspective. Learned advocate for the applicant submits that the applicant has a good case on merits and the Page 3 of 4 Uploaded by VISHAL MISHRA(HC01088) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:30:32 IST 2025 NEUTRAL CITATION R/CR.MA/9897/2024 ORDER DATED: 03/07/2025 undefined application seeking leave to appeal must be granted.
4. Learned APP Ms. Chetna Shah for the respondent No. 1 - State and learned advocate Ms. Helly Makwana have jointly submitted that learned Sessions Judge, Surat has appreciated all the evidence in proper perspective and no interference is required in the impugned judgment and order passed by the learned Sessions 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 passed by the learned Sessions Judge, Surat and the judgment and order of conviction passed by the learned trial Court prima-facie, it appears that the same set of evidence have been appreciated by two Courts in a different manner and hence, the issue requires consideration. Hence, the application seeking leave to appeal deserves consideration. Consequently, the same is allowed.
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