Gujarat High Court
Banubibi Akbarmiya Saiyad Through Poa ... vs Saiyad Shabbirali Akbarmiya on 18 June, 2025
NEUTRAL CITATION
R/CR.MA/4440/2025 ORDER DATED: 18/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 4440 of
2025
In F/CRIMINAL APPEAL NO. 8562 of 2025
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BANUBIBI AKBARMIYA SAIYAD THROUGH POA SAIYAD NISARMIYA
PIRSABMIYA
Versus
SAIYAD SHABBIRALI AKBARMIYA & ANR.
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Appearance:
MR ARPIT A KAPADIA(3974) for the Applicant(s) No. 1
MR AFTABHUSEN ANSARI(5320) for the Respondent(s) No. 1
MR. PRANAV DHAGAT, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 18/06/2025
ORAL ORDER
1. The present application is filed by the applicant - original complainant seeking leave to file an appeal against the judgement and order dated 21.12.2024 passed by the learned 20th Additional Chief Judicial Magistrate, Vadodara (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 38937/2018, whereby, the learned Trial Court was pleased to acquit the accused from the offence under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to "the NI Act" for short). Page 1 of 8 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 22:37:01 IST 2025
NEUTRAL CITATION R/CR.MA/4440/2025 ORDER DATED: 18/06/2025 undefined
2. Heard learned advocate Mr. Arpit Kapadia for the applicant, learned advocate Mr. Aftabhusen Ansari for the respondent no. 1 and learned APP Mr. Pranav Dhagat for the respondent State.
3. Learned advocate Mr. Arpit Kapadia for the applicant submits that the applicant was the owner of land bearing revenue survey nos. 302, 307, 432 and 435 situated in village Samilaya, Taluka Vadodara. Out of the said lands, some portion of survey nos. 302 and 307 were acquired by the Authority in the Mumbai - Vadodara Express Way and an amount of Rs. 5,20,35,095/- was paid as compensation and the applicant was entitled to 33.33% of the amount being Rs. 1,73,45,028/-. The amount was deposited in the account of the respondent no. 1 and the respondent no. 1 had to pay the amount to the applicant and a document to that effect was executed on 21.08.2018. The respondent no. 1 gave cheque no. 810804 for the amount of Rs. 1,45,028/- dated 07.09.2018 and cheque no. 810810 dated 05.09.2018 for the amount of Rs. 1,72,00,000/- from his account with UCO Bank, Bil Branch. The cheques were deposited by the Page 2 of 8 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 22:37:01 IST 2025 NEUTRAL CITATION R/CR.MA/4440/2025 ORDER DATED: 18/06/2025 undefined applicant in his account with UCO Bank, Bil Branch but both the cheques returned unpaid with the endorsement "Funds Insufficient". The demand statutory notice was given and the respondent no. 1 did not pay the amount within the stipulated period and hence, the applicant filed criminal complaint under Section 138 of the Negotiable Instruments Act before the Court of the Chief Judicial Magistrate, Vadodara which came to be registered as Criminal Case No. 38937 of 2018. The summons were duly served to the respondent no. 1 and he appeared before the learned Trial Court and the plea of the respondent no. 1 was recorded at Exh.8. The applicant produced his affidavit of examination- in-chief at Exh. 4 and submitted 26 documentary evidences including the document executed between the parties at Exh. 26 but the respondent no. 1 did not appear to cross- examine the applicant and the right of cross-examination of the complainant was closed and as the respondent no. 1 did not remain present, his further statement could not be recorded. Considering the evidence on record, the learned 5th Additional Judicial Magistrate First Class, Vadodara was Page 3 of 8 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 22:37:01 IST 2025 NEUTRAL CITATION R/CR.MA/4440/2025 ORDER DATED: 18/06/2025 undefined pleased to convict the respondent no. 1 for the offence under Section 138 of the Negotiable Instruments Act and sentenced the respondent no. 1 to simple imprisonment of five months and ordered the respondent no. 1 to pay the amount of cheques of Rs. 1,45,028/- and Rs. 1,72,00,000/- as compensation under section 357(3) of the Code of Criminal Procedure, 1973 to the applicant within 30 days from the date of the order and in default to undergo simple imprisonment for one month. Being aggrieved and dissatisfied with the said judgment and order of conviction dated 30.11.2021, the respondent no. 1 preferred Criminal Appeal No. 30 of 2021 before the Sessions Court, Vadodara and the learned 2nd Additional Sessions Judge, Vadodara was pleased to remand the matter back for trial to the learned Trial Court. After the matter was sent back to the learned Trial Court, the respondent no. 1 once again did not appear before the learned Trial Court and by an order passed below Exh. 34 on 05.04.2020, the stage of cross- examination was once again closed. The respondent no. 1 filed an application at Exh. 37 to reopen the stage of cross- Page 4 of 8 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 22:37:01 IST 2025
NEUTRAL CITATION R/CR.MA/4440/2025 ORDER DATED: 18/06/2025 undefined examination on 19.09.2022 and the learned Trial Court imposed a cost of Rs. 2000/- and opened the stage of cross- examination. The learned advocate for the respondent no. 1 cross-examined the applicant on 17.07.2023 and on the same day, the applicant filed an application at Exh. 42 that he wanted to examine witnesses and to reopen the stage of evidence but by an order dated 12.10.2023, the learned 27 th Additional Chief Judicial Magistrate, Vadodara was pleased to reject the application of the applicant. Being aggrieved and dissatisfied with the said order, the applicant had preferred Criminal Revision No. 43 of 2024 before the Sessions Court, Vadodara on 16.02.2024 and the matter was admitted and notice was issued to the other side. The matter was pending for service of process to the respondent no. 1 and by the impugned judgment and order dated 21.12.2024, the learned 20 th Additional Chief Judicial Magistrate, Vadodara was pleased to acquit the respondent no. 1 from the offence under Section 138 of the Negotiable Instrument Act. Learned advocate submits that after the cross-examination of the applicant by the learned advocate Page 5 of 8 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 22:37:01 IST 2025 NEUTRAL CITATION R/CR.MA/4440/2025 ORDER DATED: 18/06/2025 undefined for the respondent no. 1, certain evidences had come on record and the application for producing evidence of the applicant ought to have been granted in the interest of justice as the applicant wanted to examine witnesses and produce evidence on record, but the learned Trial Court had rejected the application at Exh. 42 and the same was under
challenge before the learned Sessions Court. That the respondent no. 1 avoided service and even though the matter was pending for consideration before the learned Sessions Court, the learned Trial Court has passed the impugned judgment and order of acquittal and hence, the application seeking leave to appeal must be granted.
4. Learned advocate Mr. Aftab Hussain Ansari for the respondent no. 1 and learned APP Mr. Pranav Dhagat for the respondent State have jointly submitted that the learned Trial Court has considered all the documentary evidences and has passed the impugned judgment in order of acquittal and no interference is required.
5. Considering the submissions of learned advocates for Page 6 of 8 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 22:37:01 IST 2025 NEUTRAL CITATION R/CR.MA/4440/2025 ORDER DATED: 18/06/2025 undefined the parties as also on perusal of the paper book produced by the learned advocate to the applicant on record, prima facie it appears that after the cross-examination of the applicant, new material had come on record and the applicant ought to have been given a chance to produce his evidence. The earlier order of conviction passed by the learned 5th Additional Judicial Magistrate First Class, Vadodara was passed when the evidence produced by the applicant on record was not challenged but after the cross-
examination certain materials had come on record and the applicant wanted to produce some more evidence, the learned 27th Additional Chief Judicial Magistrate, Vadodara had rejected the application which was challenged before the learned Sessions Court by filing Criminal Revision Application No. 43 of 2024 and while the same was pending for consideration before the learned Sessions Court, Vadodara, the impugned judgment and order has been passed. Considering the paper book and all the documents filed by the learned advocate to the applicant, prima facie it appears that the learned Trial Court has not appreciated the Page 7 of 8 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 22:37:01 IST 2025 NEUTRAL CITATION R/CR.MA/4440/2025 ORDER DATED: 18/06/2025 undefined evidence in proper perspective. In the peculiar facts and circumstances of the case in the considered opinion of this Court the application deserves to be considered. Consequently, the application seeking leave to appeal is granted and disposed off accordingly.
(S. V. PINTO,J) VASIM S. SAIYED Page 8 of 8 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 22:37:01 IST 2025