Gujarat High Court
Prabhudasbhai Dharamsibhai ... vs State Of Gujarat on 15 July, 2025
NEUTRAL CITATION
R/CR.MA/10214/2025 ORDER DATED: 15/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 10214
of 2025
In F/CRIMINAL APPEAL NO. 19930 of 2025
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PRABHUDASBHAI DHARAMSIBHAI BORKHATARIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MANAN A SHAH(5412) 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 : 15/07/2025
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 passed by the learned 11th Additional Chief Judicial Magistrate, Surat (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 5485 of 2019 on 27.03.2025, whereby the respondent No. 2 - original accused came to be acquitted from the offence under Section 138 of the Page 1 of 7 Uploaded by F.S. KAZI(HC01075) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:24:07 IST 2025 NEUTRAL CITATION R/CR.MA/10214/2025 ORDER DATED: 15/07/2025 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 accused is the brother-in-law of the applicant's son Dharmeshbhai and the accused wanted to sell his property at Pasodara, Surat. The amount for the property was decided at Rs.15,00,000/- and a written contract dated 26.01.2014 was executed between the parties. The applicant had paid Rs.15,00,000/- in parts by cash and cheques to the accused but as a mortgage loan of Canara Bank was on the property, the accused assured the applicant that the registered sale deed of the property would be executed after the loan was repaid. The registered sale Page 2 of 7 Uploaded by F.S. KAZI(HC01075) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:24:07 IST 2025 NEUTRAL CITATION R/CR.MA/10214/2025 ORDER DATED: 15/07/2025 undefined deed was not executed in time and the applicant filed an application against the accused before the Commissioner of Police, Surat during the inquiry of the application and an agreement was executed to repay the amount of the property. The accused issued cheque No.132551 for Rs. 15,00,000/- dated 19.12.2018 from his account with the HDFC Bank, Ring Road, Surat Branch. The applicant deposited the cheque on 19.12.2018 in his account and the cheque was dishonored and the reason mentioned in the return memo dated 20.12.2018 was "Account Closed". The applicant sent the statutory demand notice to the accused on 01.01.2019 which was duly served on 09.01.2019 and an evasive reply was given by the accused, but no payment was made and hence the applicant filed the criminal complaint before the Court of the Chief Judicial Magistrate, Surat under Section 138 of the N I Act, 1881 which was registered as Criminal Case No. 5485 of 2019. 2.2. The accused was served with the summons and the accused appeared before the learned Trial Court and after his plea was recorded at exhibit 07 the evidence of the applicant was taken Page 3 of 7 Uploaded by F.S. KAZI(HC01075) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:24:07 IST 2025 NEUTRAL CITATION R/CR.MA/10214/2025 ORDER DATED: 15/07/2025 undefined on record. The applicant and one witness were examined on oath and 11 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 denied all the allegations and stated that he had not issued any cheque in the name of applicant towards any legal enforceable debt and a false complaint was filed.
The accused stepped into the witness box and examined one witness and 08 documentary evidences were produced in his defence and 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 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. Page 4 of 7 Uploaded by F.S. KAZI(HC01075) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:24:07 IST 2025
NEUTRAL CITATION R/CR.MA/10214/2025 ORDER DATED: 15/07/2025 undefined
4. Heard learned advocate Mr. Manan A. Shah appearing for the applicant and learned APP Mr. Pranav Dhagat for the respondent - State.
5. Learned Advocate Mr. Manan A. Shah 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 NI Act in proper perspective. 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 APP Mr. Pranav Dhagat for the respondent - State has submitted that the learned Trial Court has appreciated all Page 5 of 7 Uploaded by F.S. KAZI(HC01075) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:24:07 IST 2025 NEUTRAL CITATION R/CR.MA/10214/2025 ORDER DATED: 15/07/2025 undefined 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, the written contract dated 26.01.2014 produced at exhibit 09, was executed between the accused and the applicant. The applicant had paid the accused Rs.9,00,000/- in parts in cash and the remaining amount of Rs.6,00,000/- was paid by cheque No.000014 for Rs.3,50,000/- and No.000016 for Rs. 2,50,000/- both dated 08.08.2017 from his account with Bank of Baroda, Piplod, Surat Branch and both cheques amounts are reflected in the bank statement of the applicant at exhibit 10 and 11. The accused stepped into the witness box and examined one witness at exhibit 58 and 08 documentary evidences were produced on record. The evidence of witness Satishbhai Chhaganbhai Solanki at exhibit 58 Page 6 of 7 Uploaded by F.S. KAZI(HC01075) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:24:07 IST 2025 NEUTRAL CITATION R/CR.MA/10214/2025 ORDER DATED: 15/07/2025 undefined admits that some financial transaction in cash has taken place between the applicant and the accused. From the documents on record, prima facie it appears that the financial transaction between the parties has been proved, but the documents on record have not been appreciated by the learned 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 7 of 7 Uploaded by F.S. KAZI(HC01075) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:24:07 IST 2025