Gujarat High Court
Bhaveshkumar Jamnadas Kakkad vs Vijaybhai Rameshchandra Kansara on 3 July, 2025
NEUTRAL CITATION
R/CR.MA/6707/2025 ORDER DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6707 of 2025
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 10560 of 2025
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BHAVESHKUMAR JAMNADAS KAKKAD
Versus
VIJAYBHAI RAMESHCHANDRA KANSARA & ANR.
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Appearance:
KANAN R JADEJA(8999) for the Applicant(s) No. 1
MS VIBHUTI K JADEJA(14009) for the Applicant(s) No. 1
MS.C.M.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 file an appeal against the order dated 03.02.2025 passed by the learned 2nd Additional Chief Judicial Magistrate, Porbandar (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 52 of 2020, whereby, respondent No.1 - original accused came to be acquitted from the offence under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as "N.I.Act").
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NEUTRAL CITATION R/CR.MA/6707/2025 ORDER DATED: 03/07/2025 undefined
2. Heard learned advocate Mr.Hari Brahmbhatt for Kanan Jadeja for the applicant and learned APP Ms.C.M.Shah for the respondent No.1 - State.
3. Learned advocate Mr.Hari Bhrahmbhatt for the applicant submits that the respondent no. 1 was in need for finance, and on his request, the applicant had deposited an amount of Rs.1,50,000/- on 13.02.2019 and an amount of Rs.2,00,000/- on 16.02.2019 by NEFT in the account of the respondent no. 1 and gave an amount of Rs.3,70,000/- in cash. The respondent no. 1 required the amount for investing in his business of travels, and in all, the applicant had advanced an amount of Rs.7,20,000/- to the respondent no. 1. When the amount was demanded back, the respondent no. 1 issued issued cheque No. 444315 dated 25.11.2019 for Rs.7,20,000/- from his account with Indian bank, Adajan Branch, Surat. The applicant deposited the said cheque in his account with Central Bank of India, Madhavpur (Ghed) Branch, but the cheque returned unpaid with the endorsement "Funds Insufficient". The demand statutory notice Page 2 of 5 Uploaded by F.S. KAZI(HC01075) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:29:51 IST 2025 NEUTRAL CITATION R/CR.MA/6707/2025 ORDER DATED: 03/07/2025 undefined was given, which was duly served to the respondent no. 1 but the respondent no. 1 did not give any reply and did not repay the amount within the stipulated time, and hence, the applicant filed the complaint under Section 138 of N.I.Act before the Court of Chief Judicial Magistrate, Porbandar, which came to be registered as Criminal Case No. 52 of 2020. After the respondent no.1 was duly served with the summons, he appeared before the learned Trial Court and after his plea was recorded, the applicant produced oral and documentary evidence in support of his case. Learned advocate for the applicant submits that during the cross- examination of the applicant, the repsondent no. 1 did not rebut the presumption, and in fact, there was an application was filed by the respondent no. 1 to the Adajan Police Station regarding the amount that was loaned to him by the brother of the applicant, which was brought on record during the cross-examination. It was the defence of the respondent no. 1 that the amount was paid into the account of the applicant on 17.06.2019, 23.09.2019 and 24.09.2019 but no such documentary evidence was produced on record. The respondent no. 1 did not step into the witness box and Page 3 of 5 Uploaded by F.S. KAZI(HC01075) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:29:51 IST 2025 NEUTRAL CITATION R/CR.MA/6707/2025 ORDER DATED: 03/07/2025 undefined did not produce any documentary evidences even to rebut the presumption or raise a plausible defence and except for the bare denial, no evidence was produced . Learned advocate submits that learned Trial Court has not appreciated the evidence on record in proper perspective and by the impugned judgment and order, was pleased to acquit the respondent no.1 from the offence under Section 138 of the N.I.Act. Learned advocate further submits that the applicant has a good case on merits, and hence, has urged this Court to allow the present application.
4. Learned APP Ms.C.M.Shah for the respondent -State has submitted that the learned Trial Court has considered all the documents produced by the applicant and has also considered the evidence and passed the impugned order of acquittal considering the settled principles of law and hence, the leave to appeal may not be granted.
5. Considering the submissions of learned advocate for the applicant as also perusal of the paper book available on record, prima facie, it appears that the learned Trial Court has failed to Page 4 of 5 Uploaded by F.S. KAZI(HC01075) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:29:51 IST 2025 NEUTRAL CITATION R/CR.MA/6707/2025 ORDER DATED: 03/07/2025 undefined appreciate the entire evidence in proper perspective, and hence, in the peculiar facts and circumstances of the case and in the considered opinion of this Court, the application deserves to be considered. Consequently, the application for leave to appeal is granted and disposed off accordingly.
(S. V. PINTO,J) F.S. KAZI Page 5 of 5 Uploaded by F.S. KAZI(HC01075) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:29:51 IST 2025