Gujarat High Court
Viral Jashvantbhai Sejpal vs State Of Gujarat on 25 September, 2025
NEUTRAL CITATION
R/CR.MA/16495/2025 ORDER DATED: 25/09/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 16495
of 2025
In F/CRIMINAL APPEAL NO. 28026 of 2025
================================================================
VIRAL JASHVANTBHAI SEJPAL
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
AVANIKA M PANCHAL(8467) for the Applicant(s) No. 1
MR SANDIP M PATEL(5649) for the Applicant(s) No. 1
MS. C.M.SHAH, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 25/09/2025
ORAL ORDER
1. The applicant has filed the present application seeking leave to appeal under Section 419(4) of the Bhartiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS") against the judgment and order passed by the learned Sessions Judge, Junagadh in Criminal Appeal No. 86 of 2024, whereby, the learned Sessions Judge, Junagadh has allowed the appeal of the respondent No. 2 and remanded the matter back to the learned Trial Court. The learned Sessions Judge was also pleased to direct the applicant and the respondent No. 2 to remain present before the learned Trial Court on 06-05-2025, and , directed the learned Trial Court to dispose of the matter within a period of three months and ordered the respondent No. 2 to pay an amount of Rs.20,000/- as costs to the applicant within a period of seven days.
Page 1 of 7 Uploaded by VISHAL MISHRA(HC01088) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:33:34 IST 2025 NEUTRAL CITATION R/CR.MA/16495/2025 ORDER DATED: 25/09/2025 undefined
2. The brief facts of the present case are as under;- 2.1 The applicant and Vivek Ajaybhai Devani, the son of the respondent No. 2 were partners of a partnership Firm VV.Agro and in that manner, the respondent No. 2 and the applicant were known to each other. The parties had financial transactions between them and as the respondent No. 2 was in need of some finance, the applicant had advanced an amount of Rs.15,00,000/- in parts, which was to repaid by August, 2020. Towards the outstanding amount, the respondent No. 2 had issued Cheque No. "004095" dated 05-11-2020 for Rs.15,00,000/- from his account with TJSB Bank, Kalavad Road, Rajkot Branch. The cheque was deposited by the applicant in his account with Bank of Baroda, Junagadh Branch, but the said cheque returned unpaid with the endorsement "Account Blocked". The demand statutory notice was given, which was duly served but the respondent No. 2 did not repay the amount within the stipulated time, and hence, the applicant filed a complaint under Section 138 of the N.I.Act, before the Court of the Chief Judicial Magistrate, Junagadh, which came to be registered as Criminal Case No. 734 of 2021.
2.2 The learned Trial Court, took cognizance of the offence and after the summons were issued to the respondent No. 2, he appeared before the learned Trial Court and the plea of the respondent No. 2 was recorded at Page 2 of 7 Uploaded by VISHAL MISHRA(HC01088) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:33:34 IST 2025 NEUTRAL CITATION R/CR.MA/16495/2025 ORDER DATED: 25/09/2025 undefined Exh.11. The applicant stepped into the witnesses box and deposed on oath at Exh.28 and produced thirteen documentary evidences in support of his case. After the closing pursis was filed by the learned advocate for the applicant, the further statement of the respondent No. 2 under Section 313 of the Code of Criminal Procedure, 1973 was recorded and after the arguments of the learned advocates for both the parties were heard, the learned Trial Court was pleased to find the respondent No. 2 guilty for the offence under Section 138 of the NI Act and sentence the respondent No. 2 to simple imprisonment for two years and further ordered the respondent No. 2 to pay an amount of Rs.30,00,000/- with 9 % interest from the date of cheque as compensation to the applicant. 2.3 Being aggrieved and dissatisfied with the said judgment and order of conviction, the respondent No. 2 filed Criminal Appeal No. 86 of 2024 before the Sessions Court, Junagadh and after the arguments of both the learned advocates were heard, the learned Sessions Judge, Junagadh, by the impugned judgment and order, was pleased to allow the appeal set aside the order of conviction and remand the matter back to the learned trial Court with the aforesaid directions.
3. Heard learned advocate Mr. S.M.Patel appearing for the applicant - original complainant and learned APP Ms. C.M.Shah for the respondent No.1 - State.
Page 3 of 7 Uploaded by VISHAL MISHRA(HC01088) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:33:34 IST 2025 NEUTRAL CITATION R/CR.MA/16495/2025 ORDER DATED: 25/09/2025 undefined
4. Learned advocate Mr. S.M.Patel for the applicant submits that the learned Sessions Judge, Junagadh has committed an error in concluding that no specific information has been taken from the Bank Officer with regard to the funds available in the account of the respondent No. 2 and the learned Sessions Judge, Junagadh has not considered that the notice was sent to the respondent No. 2 on three different addresses and the notice was served on two addresses but it was refused on the third address and even though there was a specific demand for repayment of the amount of Rs.15,00,000/-, the respondent No. 2 had chosen not to repay the amount to the applicant. Hence, the intention of the respondent No. 2 of not to repay the legally enforceable due, is prima-facie, established and the judgment and order of remand is required to be quashed and set aside.
5. Learned Additional Public Prosecutor Ms. C.M.Shah, appearing for the respondent No. 1 - State has submitted that, on perusal of the impugned judgment and order passed by the learned Sessions Judge, Junagadh, the learned Sessions Judge has allowed the appeal, set aside the judgment and order of conviction and has remanded the matter back to the learned Trial Court and there is no order of acquittal passed in the matter and hence the application seeking leave to appeal under Section 419(4) of the BNSS is not maintainable and the same must be rejected.
Page 4 of 7 Uploaded by VISHAL MISHRA(HC01088) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:33:34 IST 2025 NEUTRAL CITATION R/CR.MA/16495/2025 ORDER DATED: 25/09/2025 undefined
6. Considering the submission of the learned advocate for the applicant and learned Additional Public Prosecutor for the respondent No.1 - State, the learned Sessions Judge, Junagadh has discussed the entire evidence and allowed the appeal and set aside the judgment and order of conviction and has remanded the matter back for trial afresh but has not passed any order of acquittal. The parties have been directed to remain present before the learned Trial Court on 06-05-2025 and the learned Trial Court has been directed to conclude the trial within the period of three months.
7. At this juncture, it would be fit to reproduce Section 419 of the BNSS, which reads as under:
419. Appeal in case of acquittal.--(1) Save as otherwise provided in sub-
section (2), and subject to the provisions of sub-sections (3) and (5),--
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.
(2) If such an order of acquittal is passed in a case in which the offence has been investigated by any agency empowered to make investigation into an offence under any Central Act other than this Sanhita, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal--Page 5 of 7 Uploaded by VISHAL MISHRA(HC01088) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:33:34 IST 2025
NEUTRAL CITATION R/CR.MA/16495/2025 ORDER DATED: 25/09/2025 undefined
(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision. (3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub- section (2).
8. Admittedly, the impugned judgment and order that has been challenged in this appeal, is the order of remand passed by the learned Sessions Judge, Junagadh, wherein, the judgment and order of conviction has been set aside and the matter is remanded back to the learned Trial Court for disposal according to law. The present application is filed under Section 419(4) of the BNSS and as per the provisions of Section 419(4) of the BNSS, when an order of acquittal passed in any case instituted Page 6 of 7 Uploaded by VISHAL MISHRA(HC01088) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:33:34 IST 2025 NEUTRAL CITATION R/CR.MA/16495/2025 ORDER DATED: 25/09/2025 undefined upon a complaint, the complainant can make an application to the High Court seeking special leave to appeal against the order of acquittal and only if special leave to appeal is granted, the complainant may prefer an appeal to the High Court. In this matter, the order that has been challenged is an order of remanding the matter back to the learned trial Court to dispose of the same as per the provisions of law. The impugned judgment and order is not an order of acquittal and does not fall within the purview of Section 419(4) of the BNSS and an acquittal appeal against the order of remand, wherein no order of acquittal is passed, is not maintainable and resultantly the application seeking leave to appeal is also not maintainable.
9. Consequently the present application seeking leave to present an appeal under Section 419(4) of the BNSS 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) VVM Page 7 of 7 Uploaded by VISHAL MISHRA(HC01088) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:33:34 IST 2025