Gujarat High Court
Prakashbhai Babarbhai Machhi vs State Of Gujarat on 16 April, 2025
NEUTRAL CITATION
R/CR.MA/1708/2023 ORDER DATED: 16/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 1708 of
2023
In R/CRIMINAL APPEAL NO. 186 of 2023
With
R/CRIMINAL APPEAL NO. 186 of 2023
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PRAKASHBHAI BABARBHAI MACHHI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR BHAVESH J PATEL(6801) for the Applicant(s) No. 1
KRUTARTH K DESAI(9662) for the Respondent(s) No. 2
MS.JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 16/04/2025
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION NO. 1708 OF 2023
By way of order dated 03.03.2025, the matter was referred to the
Mediation Center, Gujarat High Court and as per the report of the
Mediator, the mediation was unsuccessful.
1. The present application is filed by the applicant - original
complainant under Section 419 (4) of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (for short "B.N.S.S.") seeking leave to appeal against the
judgment and order dated 02.07.2022 passed by learned Sessions Judge,
Mahisagar at Lunawada acquitting the respondent No. 2 - original
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R/CR.MA/1708/2023 ORDER DATED: 16/04/2025
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accused in Criminal Appeal No. 19 of 2022 filed by the respondent No. 2
- accused against the impugned judgment and order dated 11.01.2022
passed by the learned Additional Judicial Magistrate First Class,
Mahisagar at Lunawada (hereinafter referred to as the learned Trial
Court) in Criminal Case No. 71 of 2019 whereby the learned Trial Court
was pleased to convict the respondent No. 2 and ordered him to pay fine
of Rs.6,75,000/- as compensation to the applicant and in default to
undergo simple imprisonment for one month.
1.1 The respondent No. 2 is hereinafter referred to as " the accused" as
he stood in the original case for the sake of convenience, clarity and
brevity.
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 respondent No. 2 were having business
transactions and the respondent No. 2 had purchased rice for an amount
of Rs.4,50,000/- from the applicant, towards which, the respondent No. 2
gave cheque No. "336071" for the amount of Rs.4,50,000/- dated
13.11.2018 from his account with Axis Bank, Ankleshwar Branch. The
said cheque was deposited by the applicant in his account, however, the
said cheque was returned unpaid with endorsement " Funds Insufficient".
The applicant gave the demand statutory notice but the respondent No. 2
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R/CR.MA/1708/2023 ORDER DATED: 16/04/2025
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did not send any reply and did not repay the amount and hence the
applicant filed a complaint under Section 138 of the N.I. Act before the
Court of Chief Judicial Magistrate, Mahisagar at Lunawada, which came
to be registered as Criminal Case No.71 of 2019.
2.2 The respondent No. 2 was duly served and appeared before the
learned Trial Court and the applicant produced the entire evidence on
record and after appreciation of evidence, the learned Additional Judicial
Magistrate First Class, Mahisagar at Lunawada was pleased to convict the
respondent No. 2 for the offence of under Section 138 of the N.I.Act,
1881 and was pleased to pass the order of conviction of fine only since
the applicant is a working professional and ordered to pay Rs.6,75,000/-
as compensation to the applicant and in default simple imprisonment for
one months.
3. Being aggrieved and dissatisfied with the impugned judgment and
order above, the respondent No. 2 filed Criminal Appeal No. 19 of 2022
before the learned Sessions Court, Mahisagar at Lunawada and after the
arguments of learned advocates for both the parties were heard, the
learned Sessions Judge, Mahisagar at Lunawada was pleased to allow the
appeal and set aside the judgment and order passed by the learned
Additional Judicial Magistrate First Class, Mahisagar at Lunawada in
Criminal Case No. 71 of 2019, on 02.07.2022.
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R/CR.MA/1708/2023 ORDER DATED: 16/04/2025
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4. Being aggrieved and dissatisfied by the impugned order, the
applicant has preferred present application seeking leave to file an appeal
under Section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023.
5. Heard learned advocate Mr. Bhavesh J. Patel for the applicant,
learned advocate Mr. Krutarth K. Desai for the respondent No. 2, learned
Additional Public Prosecutor Ms. Jirga Jhaveri, for the respondent No. 1-
State. Perused the judgment and order passed by the learned trial Court as
well as the judgment and order passed by the learned Sessions Court.
6. Learned advocate Mr. Bhavesh J Patel for the applicant submits
that the learned Trial Court has concluded that the legally enforceable
debt was due to the applicant and the respondent No. 2 has committed an
offence but the learned Sessions Court has not appreciated the evidence
in proper perspective. The applicant has a good case on merits and hence,
the application seeking leave to appeal must be allowed.
7. Learned advocate Mr. Krutarth K Desai for the respondent No. 2
and learned Additional Public Prosecutor Ms. Jirga Jhaveri for the
respondent-State have jointly submitted that the learned Sessions Judge
has appreciated all the evidence in a different manner and has concluded
that the respondent No. 2 has not committed offence under Section 138 of
the N.I.Act, 1881 and hence, the application seeking leave to appeal must
be rejected.
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R/CR.MA/1708/2023 ORDER DATED: 16/04/2025
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8. Considering the submissions advanced by the learned advocate for
the applicant as also on perusal of the impugned judgment and order
passed by the learned Sessions Judge, Mahisagar at Lunawada, and the
judgment and order of conviction passed by the learned Trial Court
prima-facie, it appears that the same set of evidence have been
appreciated by two Courts in a different manner and hence, the issue
requires consideration. Hence, the application seeking leave to appeal
deserves consideration. Consequently, the same is allowed.
ORDER IN CRIMINAL APPEAL NO. 186 OF 2023
ADMIT. Learned Additional Public Prosecutor appears and waives
service of notice of admission on behalf of the respondent-State and
learned Advocate Mr. Krutarth K. Desai for the respondent No.2.
(S. V. PINTO,J)
VVM
