Gujarat High Court
Jitendra Arvindbhai Gandhi vs Rakesh Sharma Proprietor Of Global ... on 11 April, 2025
NEUTRAL CITATION
R/CR.MA/7145/2025 ORDER DATED: 11/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 7145 of
2025
In F/CRIMINAL APPEAL NO. 13737 of 2025
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JITENDRA ARVINDBHAI GANDHI
Versus
RAKESH SHARMA PROPRIETOR OF GLOBAL MARKETING SERVICES &
ANR.
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Appearance:
MR.DARSHAN A. DAVE(7921) 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 : 11/04/2025
ORAL ORDER
1. The present application is filed by the applicant - original
complainant under Section 419(4) of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (for short "BNSS") seeking leave to file an appeal against
the order dated 03.03.2025 passed by the Court of Chief Judicial
Magistrate, Bharuch (hereinafter referred to as the "learned Trial Court")
in Criminal Case No. 1701 of 2018, whereby the learned Trial Court has
acquitted the respondent No.1 from the offence under Section 138 of the
Negotiable Instruments Act (hereinafter referred to as the 'NI Act').
2. The brief facts culled out from the memo of the present appeal as
well as the record and proceedings are as under:-
2.1 The applicant and the respondent No. 1 were known to each other
for more than fifteen years and they had friendly relation and the
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R/CR.MA/7145/2025 ORDER DATED: 11/04/2025
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respondent No. 1 had some financial constraint to run his business for
which he had borrowed an amount of Rs.5,00,000/-. Due to the relations
between them, the applicant had given an amount of Rs.5,00,000/- by
cash to the respondent No. 1. That the amount was not paid for a long
time and as the applicant kept on demanding the amount and on
26.03.2018, the respondent No. 1 gave Cheque No. "267756" for
Rs.,5,00,000/- from his account with IDBI Bank, Dahisar (E) Branch. The
cheque was deposited by the applicant in his account but the same
returned unpaid with the endorsement "Funds Insufficient". The demand
statutory notice was sent by RPAD but the same was refused by
respondent No. 1 and no amount was paid within the stipulated time and
hence the applicant filed the complaint under Section 138 of the N.I. Act
before the Court of the Chief Judicial Magistrate, Bharuch, which came
to be registered as Criminal Case No. 1701 of 2018.
2.2 The respondent No. 1 was duly served and had appeared before the
learned Trial Court and after the plea of the applicant was recorded, the
entire evidence of the applicant was taken on record. After the evidence
was appreciated, the learned Chief Judicial Magistrate, Bharuch was
pleased to pass the impugned judgment and order of acquittal and acquit
the respondent No. 1 from the offence under Section 138 of the N.I.Act.
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R/CR.MA/7145/2025 ORDER DATED: 11/04/2025
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3. Being aggrieved and dissatisfied by the impugned order, the
applicant has preferred the present application seeking leave to file an
appeal under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita,
2023.
4. Heard learned advocate Mr. Darshan A Dave appearing for the
applicant, learned APP Ms. Dhwani Tripathi for the respondent No. 2 -
State. Perused the judgment and order passed by the learned trial Court.
5. Learned advocate Mr. Darshan A Dave for the applicant submits
that during the trial talks of settlement were going on between them and
the respondent No. 1 agreed to repay an amount of Rs.5,00,000/- to
Rs.7,00,000/- towards the outstanding amount as, in all four matters were
pending before the learned Trial Court between the parties and in all
amount of Rs.15,00,000/- was required to be paid by the applicant . The
learned Trial Court, after considering the arguments of learned advocates
for the parties and the evidence on record concluded that the applicant
had proved his debt as in fact the amount has been given to the
respondent No. 1 but as the cheques were issued after the period of
limitation, considering the period of limitation i.e. three years had
elapsed, concluded that the debt was time barred debt and has passed the
impugned judgment and order of acquittal. Learned advocate for the
applicant submits that in fact, the issuing of the cheque in question for
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R/CR.MA/7145/2025 ORDER DATED: 11/04/2025
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the time barred amount were itself a fresh agreement in light of the
provision of Section 25 (3) of the Indian Contract Act, and it was a
legally enforceable debt, towards which, the cheque in question was
issued but the learned Trial Court has not appreciated this fact. The
applicant has a good case on merits and hence, the application seeking
leave to appeal must be granted.
6. Learned APP Ms. Dhwani Tripathi for the respondent No 2 - State
has submitted that the learned Trial Court has appreciated the evidence
and has passed the impugned judgment and order of acquittal and hence
the application seeking leave to appeal must be rejected.
7. Considering the submissions made by the learned advocate for the
applicant as well as upon perusal of the paper book produced on record
by the learned advocate, it prima facie appears that the learned Trial
Court has not appreciated all the evidence produced on record by the
applicant in proper perspective and hence, the application seeking leave
to appeal deserves consideration. Consequently, the same is allowed.
(S. V. PINTO,J)
VVM
