Gujarat High Court
Vinodrai Shambhurai Thummar Poa ... vs State Of Gujarat on 7 July, 2025
NEUTRAL CITATION
R/CR.MA/9431/2025 ORDER DATED: 07/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 9431 of
2025
In F/CRIMINAL APPEAL NO. 11886 of 2025
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VINODRAI SHAMBHURAI THUMMAR POA PUSHPABEN VINODRAI
THUMMAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR JAY H PATEL(11511) for the Applicant(s) No. 1
MR PRANAV DHAGAT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/07/2025
ORAL ORDER
1. The present application is filed by the applicant - original complainant seeking leave to file an appeal against the order dated 20.11.2024 passed by the learned 17 th Additional Chief Metropolitan Magistrate, N.I.Court No.36, Ahmedabad (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 61890 of 2021, 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/9431/2025 ORDER DATED: 07/07/2025 undefined
2. Heard learned advocate Mr.Jay H. Patel for the applicant and learned APP Mr.Pranav Dhagat for the respondent No.1 - State.
3. Learned advocate Mr.Jay H. Patel for the applicant submits that the applicant has filed the present case as a Power of Attorney Holder of his wife namely Pushpaben Vinodrai Thummar. The applicant and the respondent no. 2 were known to each otherfor many years and were friends. The respondent no. 2 has two readymade showrooms, one in Maninagar and another in Navrangpura and is also an authorized dealer of Cambridge brand clothes. As the respondent no. 2 was in need of some finance for his business, he demanded the amount from the applicant and an amount of Rs.2,50,000/- was transferred to the respondent no. 2 by RTGS from the account of Pushpaben Vinodrai Thummar with Central Bank of India on 01.07.2017 and an amount of Rs.10,000/- was given to the respondent no. 2 in cash. When the amount was demanded back, the respondent no. 2 issued cheque No. 127596 dated 08.03.2021 for an amount of Rs.2,60,000/- from his account with Axis Bank, Bapunagar Branch, Ahmedabad. The applicant Page 2 of 5 Uploaded by F.S. KAZI(HC01075) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:37:52 IST 2025 NEUTRAL CITATION R/CR.MA/9431/2025 ORDER DATED: 07/07/2025 undefined deposited the said cheque in the account with Kotak Mahindra Bank, Bapunagar Branch, Ahmedabad but the cheque returned unpaid with the endorsement "Account Blocked" (situation covered in 21-25). The demand statutory notice was given, which was duly served to the respondent no. 1 and the respondent no. 1 gave evasice 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 Chief Metropolitan Magistrate, Ahmedabad, which came to be registered as Criminal Case No. 61890 of 2021. After the respondent no.2 was duly served with the summons, he appeared before the learned Trial Court and his plea was recorded and the applicant produced oral and documentary evidence in support of his case. Learned advocate for the applicant submits that respondent no. 2 had also taken an amount of Rs.7,40,000/- from Vinodrai Shamburai Thummar, the husband of Pushpaben Vinodrai Thummar and had also issued six cheques towards the outstanding amount and those cheques had also returned unpaid, and hence, Vinodrai Shamburai Thummar had filed Criminal Case No. 61886 of 2021 under Section 138 of the N.I.Act before the court of Chief Metropolitan Magistrate, Page 3 of 5 Uploaded by F.S. KAZI(HC01075) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:37:52 IST 2025 NEUTRAL CITATION R/CR.MA/9431/2025 ORDER DATED: 07/07/2025 undefined Ahmedabad. After the evidence was produced on record and as both the cases were on same day, the cross-examination of Vinodrai Shamburai Thummar was taken in Criminal Case No. 61886 of 2021 but the cross-examination of Vinodrai Shamburai Thummar, as Power of Attorney Holder of Pushpaben Vinodrai Thummar in Criminal Case No.61890 of 2021 was not recorded but the learned Trial Court considered the cross-examination of Vinodrai Shamburai Thummar in Criminal Case No. 61886 of 2021 and appreciated the cross-examination as if it was of the cross- examination of Criminal Case No. 61890 of 2021. Learned advocate submits that in fact, the cross-examination was not taken on record and entire evidence of Criminal Case No, 61886 of 2021 wrongly appreciated by the learned Trial Court in Criminal Case No. 61890 of 2021. 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.
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4. Learned APP Mr. Pranav Dhagat 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 has 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 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.
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