Gujarat High Court
Tapan Mukesh Shah vs Devine Infrastructure Owner Alkaben ... on 9 June, 2025
NEUTRAL CITATION
R/CR.MA/7822/2025 ORDER DATED: 09/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION (FOR LEAVE TO APPEAL) NO. 7822 of
2025
In F/CRIMINAL APPEAL NO. 14653 of 2025
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TAPAN MUKESH SHAH
Versus
DEVINE INFRASTRUCTURE OWNER ALKABEN SANJIVBHAI BHAKTA &
ORS.
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Appearance:
MR HIMANSHU C DESAI(6832) for the Applicant(s) No. 1
MS.CETNA SHAH, APP for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 09/06/2025
ORAL ORDER
1. The present application is filed by the applicant - original complainant under Section 419(4) of the BNSS, 2023 seeking leave to file an appeal against the judgment and order dated 18.02.2025 passed by the learned 13th Additional Chief Judicial Magistrate, Vadodara in Criminal Case No. 8186 of 2022, whereby, the respondent nos. 1 and 2 - original accused came to be acquitted from the charge levelled against them under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as "N.I.Act").
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NEUTRAL CITATION R/CR.MA/7822/2025 ORDER DATED: 09/06/2025 undefined
2. Heard learned advocate Mr.Himanshu C. Desai for the applicant and learned APP Ms.Chetna Shah for the respondent No.1 - State.
3. Learned advocate Mr.Himanshu Desai for the applicant submits that the applicant is engaged in the business of finance and the respondent No.2 is the owner of the respondent No.1 - Divine Infrastructure and was borrowing money from the present applicant. A ledger account of the respondent No.2 was maintained by the applicant in the books of accounts. The transaction between the parties was going on from 28.10.2020 to 31.12.2021 and an amount of Rs.15,00,000/- was outstanding which was not paid by the respondent No.2. On demand, the respondent No.2 issued cheque No.000162 dated 31.12.2021 of Rs.15,00,000/- from her account with the Kotak Mahindra Bank, Kabir Plaza, Makarpura, Vadodara Branch. The cheque was deposited by the applicant in his account with Central Bank of India, Karelibaug, Vadodara Branch, but the cheque returned unpaid with the endorsement "Account Closed". The demand statutory notice was given, which was duly served to the Page 2 of 4 Uploaded by F.S. KAZI(HC01075) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:08:58 IST 2025 NEUTRAL CITATION R/CR.MA/7822/2025 ORDER DATED: 09/06/2025 undefined respondent Nos. 1 and 2 but the respondent Nos.1 and 2 did not send any reply to the notice nor repaid the amount, and hence, the applicant filed a complaint under Section 138 of N.I.Act before the Court of learned Chief Judicial Magistrate, Vadodara, which came to be registered as Criminal Case No. 8186 of 2021. The respondent Nos. 1 and 2 were duly served and the respondent No. 2 appeared before the learned Trial Court and the entire evidence of the applicant was taken on record. During trial, the applicant produced a copy of the ledger account and the entire transaction between the parties and the legally enforceable debt was proved. During the cross-examination, the applicant has admitted that certain amounts has been paid by the respondent Nos. 1 and 2 but the learned Trial Court has not appreciated the evidence produced by the applicant in proper perspective and by the impugned judgment and order was pleased to acquit the respondent Nos.1 and 2 from the offence under Section 138 of the N.I.Act. Learned advocate submits that the applicant has a good case on merits, and hence, the application for leave to appeal may be granted.
4. Learned APP Ms. Chetna Shah for the respondent State Page 3 of 4 Uploaded by F.S. KAZI(HC01075) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:08:58 IST 2025 NEUTRAL CITATION R/CR.MA/7822/2025 ORDER DATED: 09/06/2025 undefined 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 the paper book on record and the impugned judgment and order, prima facie, it appears that the applicant has produced the necessary documents including a copy of ledger account of his account Central Bank of India as evidence in support of his case but 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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