Gujarat High Court
Vershi Dharamshi Katua vs State Of Gujarat on 16 April, 2025
NEUTRAL CITATION
R/CR.MA/22171/2024 ORDER DATED: 16/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 22171
of 2024
In F/CRIMINAL APPEAL NO. 25466 of 2024
==========================================================
VERSHI DHARAMSHI KATUA
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
RAZIN S ZEENA(9377) for the Applicant(s) No. 1
MR. DARSHAN C PANCHAL(14588) for the Respondent(s) No. 2
MR. MEHUL P. PANDYA(14183) for the Respondent(s) No. 2
MS.JIRGA JHAVERI, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 16/04/2025
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 01.12.2024 passed by the Court of learned Chief Judicial
Magistrate, Gandhidham (hereinafter referred to as the "learned Trial
Court") in Criminal Case No. 7956 of 2021, whereby, the learned Trial
Court has acquitted the respondent No. 2 for the offence punishable under
Sections 138 of the Negotiable Instruments Act, 1881 (hereinafter
referred to as NI Act, for short).
NEUTRAL CITATION
R/CR.MA/22171/2024 ORDER DATED: 16/04/2025
undefined
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. 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 known to each other and
the applicant had given an amount of Rs.25,500/- to the respondent No. 2,
towards which, the respondent No. 2 had issued cheque No. "113371"
dated 26.05.2021 for an amount of Rs.25,000/- from his account with
Union Bank, Gandhidham Branch. The said cheque was deposited by the
applicant in his account with Bank of India, Gandhidham Branch.
However, the said cheque returned unpaid with the endorsement "Funds
Insufficient". The demand statutory notice was given by the applicant but
the same returned unserved with the endorsement that " no such person is
residing at the address. The amount was not paid within stipulated time
and hence, the applicant filed a complaint under Section 138 of the N.I.
Act, before the Court of Chief Judicial Magistrate, Gandhidham, which
came to be registered as Criminal Case No.7956 of 2021.
2.2 The respondent No. 2 was duly served and appeared before the
learned Trial Court and the entire evidence of the applicant was taken on
record. At the end of the trial, the learned Trial Court was pleased to
appreciate the evidence and by the impugned judgment and order was
NEUTRAL CITATION
R/CR.MA/22171/2024 ORDER DATED: 16/04/2025
undefined
pleased to acquit the respondent No. 2 for the offence under Section 138
of the N.I.Act.
3. 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.
4. Heard learned advocate Mr.O.I.Pathan for the applicant, learned
advocate Mr. Mehul P. Pandya for the respondent No. 2 and learned
Additional Public Prosecutor Ms. Jirga Jhaveri, for the respondent State.
Perused the impugned judgment and order passed by the learned trial
Court.
5. Learned advocate Mr. O.I.Pathan for the applicant submits that the
learned Trial Court has concluded that respondent No. 2 has successfully
rebutted the presumption and has also concluded the notice was not duly
served to the respondent No. 2 but if the address mentioned in the
criminal case and the address of the notice sent is perused, it is the same
address and the summons of the case was duly served to the respondent
no. 2 at the same address. Learned advocate for the applicant submits that
if the evidence is perused, the respondent No. 2 has not rebutted the
presumption and the applicant has a good case on merits and the
application seeking leave to appeal must be allowed.
NEUTRAL CITATION
R/CR.MA/22171/2024 ORDER DATED: 16/04/2025
undefined
6. Learned Additional Public Prosecutor, Ms. Jirga Jhaveri for the
respondent-State and learned advocate Mr. Mehul P. Pandya have jointly
submitted that learned Trial Court has appreciated all the evidence in
proper perspective and hence, the application seeking leave to appeal
must be rejected.
7. Considering the submissions advanced by the learned advocate for
the applicant as also on perusal of the impugned judgment and order,
prima facie, it transpires that the demand statutory notice was sent at the
address mentioned in the complaint as also mentioned in this application
and the notice has been duly served on the same address, but the learned
trial Court has not appreciated the evidence in proper perspective and
hence, the application seeking leave to appeal requires consideration.
Consequently, leave to appeal is granted.
(S. V. PINTO,J)
VVM
