Gujarat High Court
Vinubhai Laxmanbhai Baria vs Rameshbhai Raiyabhai Lakhtariya ... on 2 April, 2025
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R/CR.MA/4520/2025 ORDER DATED: 02/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 4520 of
2025
In F/CRIMINAL APPEAL NO. 42840 of 2024
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VINUBHAI LAXMANBHAI BARIA
Versus
RAMESHBHAI RAIYABHAI LAKHTARIYA (PATEL) & ANR.
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Appearance:
MR VIJAY N RAVAL(2025) for the Applicant(s) No. 1
MS. DHWANI TRIPATHI, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 02/04/2025
ORAL ORDER
1. The present application is filed by the applicant - original
complainant under Section 419(4) of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (hereinafter referred to as "the BNSS") seeking leave to
appeal against the judgment and order dated 05.09.2024 passed by the
learned 5th Additional Sessions Judge, Panchmahals at Godhara acquitting
the respondent No. 1 in Criminal Appeal No. 74 of 2024 filed by the
respondent No. 1 challenging the judgment and order of conviction
passed by the learned Chief Judicial Magistrate, Panchmahals at Godhara
( hereinafter referred to as "the learned Trial Court) in Criminal Case No.
1288 of 2018 for the offence under Section 138 of the Negotiable
Instrument Act, 1881. (hereinafter referred to as the NI Act).
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1.1 The respondent is hereinafter referred to as " the accused" as he
stood in the original case for the sake of convenience, clarity and brevity.
2. Heard learned advocate Mr. N.V.Raval for learned advocate
Mr.V.N.Raval for learned advocate for the applicant and learned
Additional Public Prosecutor Ms. Dhwani Tripathi for the respondent -
State. Perused the judgments and orders of both the Courts.
3. Learned advocate Mr. N.V.Raval for learned advocate Mr.
V.N.Raval appearing for the applicant submits that the applicant is a Civil
Contractor and the respondent No. 1 was also doing the business
construction in the name and style of Nagraj Infracon Pvt. Ltd. and the
applicant and the respondent No. 1 had entered into contract to dig sand
from the lake of Ubhed village of Kamrej Taluka as the respondent No. 1
had got the contract of constructing the road from Kamrej to Palsana
cross-roads from four land to six lane in March, 2017 and the respondent
No. 1 had agreed to construct a wall surrounding the lake. The contract
was for an amount of Rs.15,16,794/-. That some amount was recovered
and an amount of Rs.9,24,500/- was due towards which, the respondent
No. 1 gave a cheque No. "808547" dated 01.01.2018 for an amount of
Rs.9,00,000/- from his account with Canara Bank, Vapi Branch. The
cheque was deposited by the applicant in his account with Baroda Gujarat
Gramin Bank, Nadisar Branch, however, the cheque returned unpaid with
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the endorsement " Funds Insufficient". The applicant gave demand
statutory notice to the respondent No.1, which was duly served but the
respondent No. 1 did not make any payment and hence, the complaint
was filed by the applicant before the learned Chief Judicial Magistrate
Panchmahals at Godhara which was registered as Criminal Case No.
1288 of 2018.
3.1 The summons were issued to the respondent No.1 which was duly
served and after the respondent No. 1 appeared before the learned Trial
Court, the entire evidence of the applicant and the respondent No. 1 was
taken on record. The learned Trial Court was pleased to convict the
respondent No. 1 for the offence under Section 138 of NI Act and
sentence the respondent No. 1 to simple imprisonment for a period of one
year and ordered the respondent No. 1 to pay Rs.9,00,000/- along with
simple interest at the rate of 9% p.a. within a period of thirty days to the
applicant from the date of the complaint under Section 357 of the Code of
Criminal Procedure, 1973.
3.2 Being aggrieved and dissatisfied with the judgment and order of
conviction, the respondent No. 1 filed Criminal Appeal No. 74 of 2024
before the Sessions Court, Panchmahals at Godhara and after the
arguments of the learned advocates for both the parties were heard, the
learned 5th Additional Sessions Judge, Panchmahals at Godhara was
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R/CR.MA/4520/2025 ORDER DATED: 02/04/2025
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pleased to allow the appeal and acquit the respondent No. 1 for the
offence under Section 138 of the NI Act.
4. Learned advocate for the applicant submits that the applicant had
produced all the documentary evidence and has also stepped into the
witness box and had proved that the amount of Rs.9,00,000/- was the
legally enforceable due from the respondent No. 1. The entire evidence
on record was properly appreciated by the learned trial Court. The
respondent No.1 did not file any reply to the notice and did not step into
the witness box but has examined one witness and in his evidence,
nothing to support the case of the respondent No. 1 has come on record.
The learned 5th Additional Sessions Judge, Panchmahals at Godhara did
not appreciate the evidence in proper perspective and by the impugned
judgment and order has acquitted the respondent No. 1 mainly concluding
that the presumption was successfully rebutted by the respondent No.1
and has passed the impugned judgment and order of acquittal. Learned
advocate for the applicant submits that all the documents prove that there
were business transaction between the parties and the amount was due
towards which the cheque in question was given and the cheque was
given towards a legally enforceable due and hence the application seeking
leave to appeal must be granted.
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5. Learned APP Ms. Dhwani Tripathi for the respondent - State has
submitted that the learned Sessions Court has appreciated all the evidence
in proper perspective and no interference is required and hence the
application for leave to appeal must be rejected.
6. Considering the arguments of the learned advocate for the
applicant and on perusal of the judgment and order passed by the learned
trial Court as well as learned 5th Additional Sessions Judge, Panchmahals
at Godhara, prima facie, it appears that the same set of evidence is
appreciated by the learned trial Court has well as learned Sessions Court
in a different manner. The application seeking leave to appeal deserves
consideration. Consequently, the same is allowed.
(S. V. PINTO,J)
VVM
