Gujarat High Court
Aslam Abdulaziz Kasmani vs State Of Gujarat on 11 April, 2025
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R/CR.MA/5516/2025 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. 5516 of
2025
In F/CRIMINAL APPEAL NO. 9519 of 2025
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ASLAM ABDULAZIZ KASMANI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
DEV D PATEL(8264) for the Applicant(s) No. 1
MS. DHWANI TRIPATHI, APP for the Respondent(s) No. 1
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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 18.01.2025 passed by the Court of Chief Judicial
Magistrate, Verval (hereinafter referred to as the "learned Trial Court") in
Criminal Case No. 731 of 2023, whereby the learned Trial Court has
acquitted the respondent No.2 from the offence under Section 138 of the
Negotiable Instruments Act, 1881 (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. 2 were known to each other
and had also entered into the business transaction with each other. During
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R/CR.MA/5516/2025 ORDER DATED: 11/04/2025
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their long association, they were also started a partnership for scrap and
the respondent No. 2 was also engaged in the same business. The
respondent No. 2 had borrowed the amount of Rs.4,60,000/- from the
applicant towards which, cheque No. "000004" dated 02.03.2023 for
Rs.3,60,000/- drawn from his account with HDFC Bank Veraval Branch
was given to the applicant. The said cheque was deposited by the
applicant in his account with Axis Bank, Veraval Branch but the same
returned unpaid with the endorsement "Funds Insufficient". The demand
statutory notice was given, which was duly served by the respondent No.
2 but the amount was not paid and no reply was filed and hence, the
applicant filed the complaint under Section 138 of the N.I. Act before the
Court of the Chief Judicial Magistrate, Gir Somnath @ Veraval, which
came to be registered as Criminal Case No. 731 of 2023.
2.2 The respondent No. 2 was duly served and appeared before the
learned Trial Court and after the plea of the respondent No. 2 was
recorded, the entire evidence of the applicant was taken on record. The
applicant has produced two oral evidence and ten documentary evidences
and after the closing pursis was filed and the further statement of the
respondent No. 2 under Section 313 of the Code of Criminal Procedure,
1973 was recorded, the respondent No. 2 examined one witness on his
behalf. The respondent No. 2 did not produce any documentary evidence
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to support of his case. After the evidence was appreciated, the learned
Chief Judicial Magistrate, Veraval, was pleased to pass the impugned
judgment and order of acquittal and acquit the respondent No. 2 from the
offence under Section 138 of the N.I.Act.
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. Dev D. Patel appearing for the
applicant, learned APP Ms. Dhwani Tripathi for the respondent No. 2 -
State. Perused the impugned judgment and order passed by the learned
trial Court.
5. Learned advocate Mr. Dev D. Patel for the applicant submits that
in the further statement, the respondent No. 2 had admitted that he had
taken the amount and it was his defense that he had repaid the amount to
the applicant but there is no evidence produced by him as to when and in
what manner, the amount was repaid. Learned advocate for the applicant
submits that the learned Trial Court has not appreciated the evidence
properly and merely because a criminal case was filed against the
applicant, the learned Trial Court has considered that the legally
enforceable debt was not proved. That in fact, the learned Court has not
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considered the admission of the respondent Nos. 2 in the further
statement and the applicant has a good case on merits. 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 even though the
criminal case has been filed against the applicant, the same has not
become final and there is no evidence that the amount has been repaid by
the respondent No. 2 as admitted by him in the further statement recorded
under Section 313 of the Code of Criminal Procedure, 1973. Hence, the
application seeking leave to appeal deserves consideration. Consequently,
the same is allowed.
(S. V. PINTO,J)
VVM
