Gujarat High Court
Rajeshkumar Manilal Limbachiya vs State Of Gujarat on 8 April, 2025
NEUTRAL CITATION
R/CR.MA/24599/2024 ORDER DATED: 08/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 24599
of 2024
In F/CRIMINAL APPEAL NO. 47448 of 2024
==========================================================
RAJESHKUMAR MANILAL LIMBACHIYA
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR AMIT N PATEL(2749) for the Applicant(s) No. 1
MR ROHITKUMAR R SHARMA(12025) for the Respondent(s) No. 2
P C NAYAK(12520) for the Respondent(s) No. 2
MS. DHWANI TRIPATHI, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 08/04/2025
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 "BNSS"), seeking leave to appeal
against the judgment and order dated 14.10.2024 passed by the
Additional Judicial Magistrate First Class, Patan (hereinafter referred to
as "the Trial Court"), granting the benefit of doubt and acquitting the
respondent - accused - in Criminal Case No. 1313 of 2023, filed by the
applicant for the offence under Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as "the NI Act").
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.
NEUTRAL CITATION
R/CR.MA/24599/2024 ORDER DATED: 08/04/2025
undefined
2. The brief facts, as culled out from the memo of the present appeal
as well as the record and proceedings, are as under:
2.1 The applicant had taken an amount of Rs. 8,00,000/- from the
respondent through his relative. The said amount was given for a period
of one year. Thereafter, when the amount was demanded, the respondent
issued Cheque No. 000024 dated 21.03.2023 drawn on his account with
Bank of Baroda, Patan Branch. The applicant deposited the said cheque
into his account with Bank of Baroda, Patan Branch, however, it was
returned unpaid with the endorsement "Funds Insufficient."
Subsequently, the applicant issued a statutory demand notice to the
respondent No. 2, which was duly served. The respondent No. 2,
however, gave an evasive reply and failed to repay the amount. The
applicant filed a complaint under Section 138 of the NI Act before the
learned Chief Judicial Magistrate, Patan, which was registered as
Criminal Case No. 1313 of 2023.
2.2 After the appearance of the respondent No. 2 and recording of his
plea, the applicant has produced oral and documentary evidence on
record and upon closure of the evidence of the applicant, the further
statement of the respondent No. 2 under Section 313 of the Cr.P.C. was
recorded. The respondent stepped into the witness box, deposed on oath,
NEUTRAL CITATION
R/CR.MA/24599/2024 ORDER DATED: 08/04/2025
undefined
and examined eight witnesses on his behalf. However, no documentary
evidence was produced by the respondent. After hearing the arguments of
the learned advocates for both sides, the learned Additional Judicial
Magistrate First Class, Patan, extended the benefit of doubt to the
respondent and, by the impugned judgment and order dated 14.10.2024
under Section 255 of the Code of Criminal Procedure, 1973, acquitted
him of the offence.
3. Heard learned advocate Mr. Amit N. Patel for the applicant,
learned advocate Mr. Rohitkumar R. Sharma for the respondent, and
learned Additional Public Prosecutor Ms. Dhwani Tripathi for the
respondent-State. Perused the judgment and order passed by the learned
Trial Court.
4. Learned advocate Mr. Amit N. Patel for the applicant submitted
that the applicant had produced all relevant documents and had proved
the existence of a legally enforceable debt. The promissory note executed
by the respondent No. 2 clearly admitted the borrowing of Rs. 8,00,000/-
for one year and it stated that the amount would repay by 04.10.2022. In
his reply to the statutory notice produced on record, the respondent No. 2
has stated the loan in installments with 3.5% interest has been repaid.
However, the defense taken by the respondent No. 2 als was that the
NEUTRAL CITATION
R/CR.MA/24599/2024 ORDER DATED: 08/04/2025
undefined
amount was borrowed by his partner but the said fact was contrary to the
facts stated in the reply to the notice. Moreover, in the entire evidence,
there is no evidence produced on record to show that the amount was paid
back in installments and if any amount is paid, the documentary evidence
to that effect would have been produced on record. Learned advocate for
the applicant has submitted that the applicant has a good case on merits
and hence, the application seeking leave to appeal must be granted.
5. Learned advocate Mr. R.R. Sharma for the respondent No. 2
submitted that the cheque in question was never deposited by the
applicant and the return memo does not bear the signature of the Bank
Manager and the same is forged. This issue was raised before the learned
Trial Court but the learned Trial Court has not considered the same. It
was further submitted that the stamp paper used for the promissory note
was not purchased by the respondent No. 2 and evidence to this effect
was submitted but the learned Trial Court has also not considered the
same. Thus, the application for leave to appeal must be be rejected.
6. Learned Additional Public Prosecutor Ms. Dhwani Tripathi for the
respondent-State has submitted that the learned Trial Court has
appreciated all the evidence placed on record, and therefore, the
application seeking leave to appeal must be rejected.
NEUTRAL CITATION
R/CR.MA/24599/2024 ORDER DATED: 08/04/2025
undefined
7. Considering the submissions of the learned advocates for the
respective parties, as well as the learned Additional Public Prosecutor,
prima facie it appears that the promissory note was executed by the
respondent No. 2, admitting a hand loan of Rs. 8,00,000/- for a period of
one year, and the same would be repaid by 04.10.2022. In the reply to the
statutory notice, the respondent No. 2 has stated that his partner had taken
the said amount for purchasing an office and without his knowledge or
consent, he left the partnership firm, and the entire responsibilities was
thrown upon him. The respondent No. 2 has further submitted that the
amount was borrowed with interest at the rate of 3.5% and the Cheque
No. 000024, drawn on Bank of Baroda, Patan Branch, was issued as a
security and the same was misused by the applicant. Considering the oral
and documentary evidence on record, the issue requires consideration as
prima facie, it appears that the evidence has not been appreciated by the
learned Trial Court is proper perspective. Consequently, the application
seeking leave to appeal is allowed.
(S. V. PINTO,J)
VVM
