Gujarat High Court
Shaileshbhai Govindbhai Gondaliya vs State Of Gujarat on 3 July, 2025
NEUTRAL CITATION
R/CR.MA/7877/2025 ORDER DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 7877 of 2025
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 14105 of 2025
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SHAILESHBHAI GOVINDBHAI GONDALIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
DHRUVIK K PATEL(7769) for the Applicant(s) No. 1
MS.C.M.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 under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short "BNSS") seeking leave to file an appeal against the judgment and order dated 05.03.2025 passed by the learned Judicial Magistrate First Class, Rajkot (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 17856 of 2021, whereby the respondent No. 2 - original accused came to be acquitted from the offence under Section 138 of the Page 1 of 6 Uploaded by F.S. KAZI(HC01075) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:30:05 IST 2025 NEUTRAL CITATION R/CR.MA/7877/2025 ORDER DATED: 03/07/2025 undefined Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act").
1.1 The respondent No. 2 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 application as well as the impugned judgment and order and paper book filed by the applicant are as under:
2.1 The applicant filed a complaint against the accused under Section 138 of the Act, as the accused had taken a hand loan of Rs.16,00,000/- in parts from the applicant and the accused had issued cheque No.000112 for the amount of Rs.16,00,000/- dated 08.04.2021 from his account with Bank of Baroda, Bedipara, Rajkot Branch. The applicant deposited cheque in his account with The State Bank of India, Mavdi Plot, Ring Road, Rajkot Branch and the cheque was dishonored on 09.04.2021 and the reason mentioned in the return memo was "Account Blocked". The applicant sent the statutory demand notice to the accused on 13.04.2021 which was Page 2 of 6 Uploaded by F.S. KAZI(HC01075) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:30:05 IST 2025 NEUTRAL CITATION R/CR.MA/7877/2025 ORDER DATED: 03/07/2025 undefined returned unserved and no payment was made. The applicant filed the criminal complaint before the Court of the Judicial Magistrate First Class, Rajkot under Section 138 of the N I Act, 1881 which was registered as Criminal Case No. 17856 of 2021. 2.2 The accused was served with the summons and the accused appeared before the learned Trial Court and his plea was recorded at exhibit 06 and the entire evidence of the applicant was taken on record. The applicant was examined on oath and 08 documentary evidences were produced 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 he has not issued any cheque in favor of the applicant and a false complaint has been filed. The accused stepped into the witness box and was examined on oath at exhibit 60 and the accused examined four witness on oath and produced 01 documentary evidence in his defence. After the arguments of the learned advocates for both the parties were heard, by the impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of Page 3 of 6 Uploaded by F.S. KAZI(HC01075) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:30:05 IST 2025 NEUTRAL CITATION R/CR.MA/7877/2025 ORDER DATED: 03/07/2025 undefined the N.I.Act.
3. Being aggrieved and dissatisfied with the same, the applicant has preferred the present application seeking leave to appeal mainly stating that the learned Trial Court has not properly interpreted the evidence and has misread the evidence and the impugned judgment is perverse, erroneous and contrary to law.
4. Heard learned advocate Mr. Dhruvik K. Patel for the applicant, learned APP Ms. C. M. Shah for the respondent - State.
5. Learned Advocate Mr. Dhruvik K. Patel for the applicant submits that the learned Trial Court has not appreciated that the applicant has successfully established that the cheque in question was issued by the accused from the bank account maintained by him. The applicant has proved that the cheque was written by the accused and it was dishonoured and as the applicant is the holder in due course of the cheque in question the statutory presumption under Section 139 of the N.I.Act is to be drawn in favour of the applicant. The learned Trial Court has not appreciated the provisions of Section 118 and 138 of the N.I.Act in Page 4 of 6 Uploaded by F.S. KAZI(HC01075) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:30:05 IST 2025 NEUTRAL CITATION R/CR.MA/7877/2025 ORDER DATED: 03/07/2025 undefined proper perspective. The fact of the amount paid by the applicant to the accused is not negated, but the learned Trial Court has disbelieved the same. The accused had failed to rebut the presumption and hence the judgment and order of acquittal is bad in law and the leave to appeal must be granted.
6. Learned Ms.C.M.Shah for the respondent - State has submitted that the learned Trial Court has appreciated all the evidence in detail in light of the citations referred to in the judgment and has passed the judgment and order of acquittal which is proper and no interference is required and hence the application for leave to appeal must be rejected.
7. Considering the submissions of learned advocate for the applicant as also the impugned judgment and order and the paper book produced by the learned advocate for the applicant on record prima-facie it appears from the documents on record the financial transaction between the parties has been proved, but the documents on record have not been appreciated by the learned Page 5 of 6 Uploaded by F.S. KAZI(HC01075) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:30:05 IST 2025 NEUTRAL CITATION R/CR.MA/7877/2025 ORDER DATED: 03/07/2025 undefined Trial Court in proper perspective and the application seeking leave to appeal requires consideration.
8. Consequently, the application is allowed and disposed of accordingly.
(S. V. PINTO,J) F.S. KAZI Page 6 of 6 Uploaded by F.S. KAZI(HC01075) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:30:05 IST 2025