Gujarat High Court
Vicky Hasmukhrai Patel vs Mukesh Shankarlal Bhanushali on 11 July, 2025
NEUTRAL CITATION
R/CR.MA/12377/2025 ORDER DATED: 11/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 12377
of 2025
In F/CRIMINAL APPEAL NO. 23228 of 2025
================================================================
VICKY HASMUKHRAI PATEL
Versus
MUKESH SHANKARLAL BHANUSHALI & ORS.
===============================================================
Appearance:
MR DAIFRAZ HAVEWALLA(3982) for the Applicant(s) No. 1
MR PRANAV DHAGAT, APP for the Respondent(s) No. 3
===============================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 11/07/2025
ORAL ORDER
1. The present application is filed by the applicant - original complainant seeking leave to file an appeal against the order dated 01.05.2025 passed by the Additional Chief Judicial Magistrate, Vapi, (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 11847 of 2024, whereby, the respondent nos.1 and 2 - original accused came to be acquitted from the offence under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as "N.I.Act").
2. Heard learned advocate Mr.Daifraz Havewalla for the Page 1 of 6 Uploaded by F.S. KAZI(HC01075) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:25:48 IST 2025 NEUTRAL CITATION R/CR.MA/12377/2025 ORDER DATED: 11/07/2025 undefined applicant and learned APP Mr. Pranav Dhagat for the respondent No.3 - State.
3. Learned advocate Mr.Daifraz Havewalla for the applicant submits that the applicant was the owner of the agricultural land bearing Survey No.2128 situated at Village Tukwada, Taluka Pardi and the said land was purchased by the accused along with Mukesh Shankarlal Bhanushali and Suresh Shankarlal Bhanushali by a registered sale deed No. 2205 dated 07.08.2021. The possession of the land was handed over on the same day and a Notarized Memorandum of Understanding was executed between the parties on 20.04.2022 agreeing that the registered sale deed was executed for the jantri rate of the land, which was of Rs.83,05,000/- and stamp of Rs.4,06,945/- was paid for the same, but the market rate of the land was Rs.11,59,05,000/-, which was the price agreed upon between the parties. As per the MOU, an amount of Rs.10,76,00,000/- was to be paid and the respondent nos. 1 and 2 and the other two purchasers had issued cheques in favour of the applicant. For the said transaction, the respondent nos. 1 and 2 issued cheque nos. 680343 and 680344 Page 2 of 6 Uploaded by F.S. KAZI(HC01075) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:25:48 IST 2025 NEUTRAL CITATION R/CR.MA/12377/2025 ORDER DATED: 11/07/2025 undefined dated 05.05.2024 for the amount of Rs.1,00,00,000/- each from his account with Punjab National Bank, Vapi Branch. The said cheques were deposited by the applicant in his account with IndusInd bank, Vapi Branch, but the cheques returned unpaid with the endorsement "Payment Stopped by Drawer". The demand statutory notice was given, which was duly served to the respondent no. 1 and despite the service of notice, the respondent no.1 did not reply to the notice and did not repay the amount within the stipulated period, and hence, the applicant filed a complaint under Section 138 of the N.I.Act before the Court of Chief Judicial Magistrate, Vapi, which came to be registered as Criminal Case No. 11847 of 2024. After the learned Trial Court took cognizance of the offence, the summons were duly served to the respondent nos.1 and 2 , the plea of the respondent no. 1 was recorded after he appeared before the learned Trial Court The entire evidence of the applicant was taken on record. Learned advocate for the applicant submits that the applicant has produced a copy of the sale deed at Exh.29, copy of MOU at Exh.54 and other two documents including receipts for change of cheques at Exhs. 55 and 56 respectively. The applicant examined two witnesses in Page 3 of 6 Uploaded by F.S. KAZI(HC01075) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:25:48 IST 2025 NEUTRAL CITATION R/CR.MA/12377/2025 ORDER DATED: 11/07/2025 undefined support of his case at Exhs. 53 and 58 respectively and after the closing pursis was filed, the further statement of the respondent no. 1 was recorded, wherein, the respondent no.1 denied the evidence against him and took a defence that there was another transaction between the parties for developing the land situated at village Kikarala and the signature of the respondent no. 1 was taken by the applicant and the blank cheques have been misused. Learned advocate for the applicant submits that the respondent no. 1 did not produce any evidence regarding the land of the applicant at village Kikarala or any development agreement for the land situated at village Kikarala and without appreciating the documents in proper perspective, the learned Trial Court was pleased to pass the order of acquittal mainly on the ground that the contract or the transaction between the parties is illegal and the applicant could not be allowed to enforce the illegal transaction as also the presumption under Section 85 of the Evidence Act would not be available as the MOU was attested by a Notary Public. The learned Trial Court was also pleased to hold that the transaction, which was not reflected in the books of account, could not be permitted to be enforced and passed the impugned judgment and Page 4 of 6 Uploaded by F.S. KAZI(HC01075) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:25:48 IST 2025 NEUTRAL CITATION R/CR.MA/12377/2025 ORDER DATED: 11/07/2025 undefined order of acquittal. Learned advocate for the applicant submits that the transaction entered into between the parties was a legal transaction as the amount was to be received by the applicant was to be received through cheques and the same would be reflected in his Income Tax Returns. Learned advocate for the applicant further submits that it is not the case of the applicant that the amount was to be taken in cash but the MOU was executed between the parties and the amount that was to be received by the applicant was to be paid by the cheques. Learned advocate for the applicant further submits that the learned Trial Court has not appreciated the entire evidence in proper perspective, even though it was not defence of the respondent no.1 and the respondent no.1 had not rebutted the presumption and raised a plausible defence., the impugned order has been passed. Learned advocate submits that the applicant has a good case on merits and has urged this Court to allow the present application.
4. Learned APP Mr. Pranav Dhagat for the respondent - State has submitted that the learned Trial Court has considered all the evidence produced by the applicant in proper perspective and Page 5 of 6 Uploaded by F.S. KAZI(HC01075) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:25:48 IST 2025 NEUTRAL CITATION R/CR.MA/12377/2025 ORDER DATED: 11/07/2025 undefined has passed the impugned order 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 produced by the learned advocate, prima-facie, it appears that the learned Trial Court has failed to appreciate the evidence on record 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 6 of 6 Uploaded by F.S. KAZI(HC01075) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:25:48 IST 2025