Gujarat High Court
Bhavesh Kanaiyalal Agravat vs State Of Gujarat on 16 April, 2025
NEUTRAL CITATION
R/CR.MA/7368/2025 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. 7368 of
2025
In F/CRIMINAL APPEAL NO. 9276 of 2025
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BHAVESH KANAIYALAL AGRAVAT
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PRITESH V RAMI(13679) for the Applicant(s) No. 1
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
1. The present application is filed by the applicant - original
complainant under Section 419(4) of the Bharatiya Nagarik Suraksha
Sanhita, 2023 seeking leave to appeal against the judgement and order of
acquittal dated 08.11.2024 passed by learned 4th Additional Chief Judicial
Magistrate, Porbandar (hereinafter referred to as the learned Trial Court")
in Criminal Case No. 2184 of 2017, whereby, the learned Trial Court
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).
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.
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R/CR.MA/7368/2025 ORDER DATED: 16/04/2025
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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 had family relations and the son
of the respondent No. 2 wanted to travel abroad and the respondent No. 2
was in need of financial assistance and the applicant had given an amount
of Rs.12,00,000/- in parts to the respondent No. 2. Towards the
outstanding amount, the respondent No.2 issued seven cheques including
Cheque No."036342" dated 16.01.2017 for Rs.2,00,000/- from his
account with Union Bank, Porbandar Branch. The said cheque was
deposited by the applicant in his account with Axis Bank, Porbandar
Branch, which came to be returned unpaid with the endorsement "Funds
Insufficient". The demand statutory notice was given to the respondent
No. 2, which was duly served to the respondent No. 2 but the respondent
No. 2 did not accept the same and did not repay the outstanding amount
within stipulated time and hence, the applicant filed a complaint under
Section 138 of the N.I. Act, which came to be registered as Criminal Case
No.2184 of 2017.
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
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R/CR.MA/7368/2025 ORDER DATED: 16/04/2025
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applicant has produced one oral evidence and five 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. After the evidence was appreciated, the
learned 4th Additional Chief Judicial Magistrate, Porbandar 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 present application seeking leave to file an appeal
under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023.
4. Heard learned advocate Mr.Pritesh Rami for the applicant and
learned Additional Public Prosecutor Ms. Jirga Jhaveri, for the
respondent State. Though served the respondent has not appeared either
in person or through an advocate. Perused the impugned judgment and
order passed by the learned trial Court as well as the paper book produced
on record by the learned advocate for the applicant.
5. Learned advocate Mr. Pritesh Rami for the applicant submits that
the applicant had also produced a deed of Memorandum of
Understanding executed between the applicant and the respondent No. 2
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R/CR.MA/7368/2025 ORDER DATED: 16/04/2025
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at Exh:56, which was notarized, wherein the respondent No. 2 admitted
of taking amount and issued seven cheques of various dates towards
payment of the same. The deed mentions the numbers of cheques with
the amount and dates. Learned advocate for the applicant submits that
during the pendency of the trial, the applicant was also arrested and
released on bail wherein he has admitted that he had taken the amount
and he would repay the amount within three months before the learned
Trial Court, however, the learned Trial Court has not appreciated the
evidence and was pleased to pass the impugned judgment and order of
acquittal. Learned advocate for the applicant submits that the learned
Trial Court has not appreciated the evidence in proper perspective and the
fact that the Memorandum of Understanding which is produced at Exh.56
admits that the amount was taken towards which, the cheque in question
was issued. The applicant had a good case on merits and the application
seeking leave to appeal must be allowed.
6. Learned Additional Public Prosecutor, Ms. Jirga Jhaveri for the
respondent-State has 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
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the applicant as also on perusal of the paper book produced on record by
the learned advocate for the applicant, more particularly, the document
which is produced at Exh.56, prima facie, it appears that the learned trial
Court has not appreciated the evidence in proper perspective and hence,
application seeking leave to appeal requires consideration. Consequently,
leave to appeal is granted.
(S. V. PINTO,J)
VVM
