Gujarat High Court
Shaukatali Amirali Khoja vs State Of Gujarat on 7 October, 2025
NEUTRAL CITATION
R/CR.MA/19756/2024 ORDER DATED: 07/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO.
19756 of 2024
In F/CRIMINAL APPEAL NO. 29038 of 2024
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SHAUKATALI AMIRALI KHOJA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR VIJAY H NANGESH(3981) for the Applicant(s) No. 1
MS VIRAL A DETROJA(12122) for the Respondent(s) No. 2
MR ADITYA JADEJA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/10/2025
ORAL ORDER
1. The present application is filed by the applicant - original complainant seeking leave to file an appeal against the judgment and order dated 14.03.2024 passed by the learned Additional Judicial Magistrate First Class, Mundra in Criminal Case No. 308 of 2020, whereby the original accused - respondent No. 2 herein came to be acquitted from the charge levelled against him under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act") as well as the complainant was ordered to give Rs.10,000/- as Page 1 of 9 Uploaded by F.S. KAZI(HC01075) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 23:57:34 IST 2025 NEUTRAL CITATION R/CR.MA/19756/2024 ORDER DATED: 07/10/2025 undefined compensation to the respondent no.2 within 10 days, and in default, simple imprisonment of 20 days as per the provisions of Section 257(3) of the Cr.P.C.
1.1. The parties are referred to as the "complainant and "the accused" 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 complainant and the accused reside at the same address and the ancestral property of the family of the complainant situated at village Mundra bearing Survey No. 3044 jointly belongs to the complainant and his brothers. The accused, by gaining the trust of the complainant and his brothers, managed to get a registered sale deed of the said property executed in his favour and, towards part payment, issued cheque No.000046 for an amount of Rs.1,50,000/- from his account with Bandhan Bank, Baladia Branch dated 15.07.2020.
When the complainant deposited the said cheque in his account with State Bank of India, Mundra Branch, the cheque was Page 2 of 9 Uploaded by F.S. KAZI(HC01075) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 23:57:34 IST 2025 NEUTRAL CITATION R/CR.MA/19756/2024 ORDER DATED: 07/10/2025 undefined returned unpaid on 17.07.2020. When the complainant informed the accused, the accused assured the complainant to redeposit the cheque after some time. However, when the complainant had redeposited the said cheque on 05.08.2020, the same was again dishonoured on 07.08.2020 with the endorsement "Drawers Signature Differs". Thereafter, the demand statutory notice was issued on 26.08.2020 and also a public notice in the newspaper "Kutch Mitra" was issued, despite this, the accused failed to make the payment and hence, the complainant filed the present complaint under Section 138 of the Negotiable Instruments Act, 1881.
2.2. The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded at Exh.14 and the evidence of the complainant was taken on record. The complainant at Exh.06 was examined on oath and 07 documentary evidences were produced in support of the case and after the closing pursis at Exh.30 was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused stated that no transaction has taken place between the Page 3 of 9 Uploaded by F.S. KAZI(HC01075) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 23:57:34 IST 2025 NEUTRAL CITATION R/CR.MA/19756/2024 ORDER DATED: 07/10/2025 undefined complainant and the accused regarding the land and he has not purchased the land as stated in the complaint and a false complaint has been filed and no legally enforceable amount is due from the accused. The accused did not step into the witness box but produced 02 documentary evidences in support of his defence. After the evidence of the accused was closed the arguments of the learned advocates for both the parties were heard and by the impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the N.I.Act and the complainant was ordered to give Rs.10,000/- as compensation to the respondent no.2 within 10 days, and in default, simple imprisonment of 20 days as per the provisions of Section 257(3) of the Cr.P.C..
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.
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NEUTRAL CITATION R/CR.MA/19756/2024 ORDER DATED: 07/10/2025 undefined
4. Heard learned advocate Mr. Mangal Gadhavi for learned advocate Mr.Vijay Nangesh appearing for the applicant and learned APP Mr. Aditya Jadeja for the respondent - State.
5. Learned Advocate Mr. Mangal Gadhavi 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 respondent no.2 from the bank account maintained by him 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 N.I.Act in proper perspective. The oral contract is not negated by the accused and the fact of the amount paid by the applicant to the accused is also not negated, but the learned Trial Court has disbelieved the same. The accused had failed to rebut the presumption and the financial capacity of the applicant was never put to challenge and hence the judgement and order of acquittal is bad in law and the leave to appeal must be granted.
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NEUTRAL CITATION R/CR.MA/19756/2024 ORDER DATED: 07/10/2025 undefined
6. Learned APP Mr.Aditya Jadeja has submitted that the learned Trial Court has appreciated all the evidence in detail in light of the citations referred to in the judgement and has passed the judgement and order of acquittal, which is proper and no interference is required and hence the application for leave to appeal must be rejected.
7. In light of the above settled principles of law and considering the arguments advanced by the learned advocates for the parties and on perusal of the impugned judgment and order and paperbook submitted by the learned advocate for the applicant on record, it transpires that the complaint has been filed by the applicant stating that property bearing City Survey No.3044 situated in Mundra was sold to the respondent no.2 towards which cheque 000046 dated 15.07.2020 for Rs.1,50,000/- from his account with Bandhan Bank, Baladia Branch was issued and as the cheque returned unpaid, the complaint came to be filed. As per the case of the applicant the cheque was for the sale of property bearing City Survey No.3044 situated in Mundra. During the cross-examination of the applicant by the learned advocate for the respondent no.2, the Page 6 of 9 Uploaded by F.S. KAZI(HC01075) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 23:57:34 IST 2025 NEUTRAL CITATION R/CR.MA/19756/2024 ORDER DATED: 07/10/2025 undefined applicant has admitted that the property was sold by himself and his three brothers for Rs.23,20,000/- and he had received a cheque of Rs.23,20,000/- for the sale price and the cheque was cleared. The applicant has also admitted that he did not produce the copy of the registered sale deed or the agreement to sell and he could not say as to whether in the sale deed it was mentioned that the amount of Rs.1,50,000/- was outstanding towards the sale price of the property. In the further statement of the accused, the accused denied all the evidence on record and stated that no transaction had ever taken place between the applicant and the respondent no.2 and no property was purchased by the respondent no.2. The respondent no.2 has produced the copy of the registered sale deed for City Survey No.3044 at Exh.37 and the property has been purchased by one Nirmalaben Narendrabhai Thakkar from the applicant and his three brothers. The registered sale deed was executed for Rs.23,20,000/- which was the market value of the property and the document states that the amount of Rs.23,20,000/- was received by the applicant and his brothers by cheques. Page 7 of 9 Uploaded by F.S. KAZI(HC01075) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 23:57:34 IST 2025
NEUTRAL CITATION R/CR.MA/19756/2024 ORDER DATED: 07/10/2025 undefined 7.1. It is the case of the applicant that the cheque in question was given for the purchase price of the property bearing City Survey No.3044 situated in Mundra, which was purchased by the respondent no.2, but by the document produced at Exh.37, it is proved that property bearing Revenue Survey No.3044 situated in Mundra was purchased by one Nirmalaben Narendrabhai Thakkar residing at 22, Vishalnagar, Junawas, Madhapur, Taluka Bhuj, District Kutch and the purchase price of Rs.23,20,000/- was received by the applicant and his brothers. Hence, there is no iota of evidence to prove that any amount was outstanding from the respondent no.2 or that the respondent no.2 had ever purchased the property from the applicant and there is no legally enforceable due amount from the respondent no.2.
8. The learned Trial Court has appreciated the entire evidence and has rightly concluded that the applicant has failed to produce reliable and cogent evidence and record about the legally recoverable debt from the respondent no.2 and the applicant has not proved his case beyond reasonable doubt. The learned Trial Court has concluded that the accused has Page 8 of 9 Uploaded by F.S. KAZI(HC01075) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 23:57:34 IST 2025 NEUTRAL CITATION R/CR.MA/19756/2024 ORDER DATED: 07/10/2025 undefined successfully rebutted the presumption based on preponderance of probability and, in light of the above observation, the learned Trial Court has passed the impugned judgment and order of acquittal, which is just and proper and does not require any interference of this Court.
9. Consequently, the present application seeking leave to present an appeal under Section 419(4) of the Bhartiya Nagrik Suraksha Sanhita fails and is hereby dismissed.
10. Since the leave to prefer appeal is rejected, no order is required to be passed in the Criminal Appeal, which is at filing stage and the same stands disposed accordingly.
(S. V. PINTO,J) F.S. KAZI Page 9 of 9 Uploaded by F.S. KAZI(HC01075) on Thu Oct 09 2025 Downloaded on : Thu Oct 09 23:57:34 IST 2025