Gujarat High Court
Gagubhai Dhamabhai Dangar vs State Of Gujarat on 16 April, 2025
NEUTRAL CITATION
R/CR.MA/5536/2025 ORDER DATED: 16/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 5536 of 2025
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 8565 of 2025
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GAGUBHAI DHAMABHAI DANGAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR Y J PATEL(3985) 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 378(4) of the Code of
Criminal Procedure, 1973 seeking leave to file an appeal against
the order dated 28.01.2025 passed by the learned Additional
Chief Judicial Magistrate, Gandhidham - Kutch (hereinafter
referred to as the "learned Trial Court") in Criminal Case No.
2558/2019, whereby, the learned Trial Court was pleased to
acquit the accused from the offence under Section 138 of
Negotiable Instrument Act, 1881 (hereinafter referred to "the
N.I. Act" for short).
2. Heard learned advocate Mr.Y.J.Patel for the applicant
NEUTRAL CITATION
R/CR.MA/5536/2025 ORDER DATED: 16/04/2025
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and learned APP Ms.Jirga Jhaveri for the respondent No.1 -
State.
3. Learned advocate Mr.Y.J.Patel for the applicant
submits that the applicant was doing the business of wood and
the applicant and the respondent No.2 came in touch through
their common friend. As in the year 2018, the respondent no.2
was in need of some finance, the applicant had given an amount
of Rs.4,35,000/- in cash for a period of one or two months. That
on demand, the respondent No.2 gave cheque No.496715 dated
07.05.2019 of Rs.4,35,000/- from his account with State Bank of
India, Aadipur Branch. The cheque was deposited by the
applicant in his account with IDBI Bank, Gandhidham Branch,
but the cheque returned unpaid with the endorsement "Funds
Insufficient". The demand statutory notice was given, which was
duly served to the respondent No.2 and the respondent No.2
gave an evasive reply including a false statement that the
respondent No.2 had given an amount of Rs.2,50,000/- to the
applicant four years ago and had already paid an amount of
Rs.4,50,000/- and only Rs.45,000/- was outstanding towards the
interest and the amount was not paid within stipulated time. The
applicant filed the complaint under Section 138 of N.I.Act before
the Court of Chief Judicial Magistrate, First Class, Gandhidham -
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R/CR.MA/5536/2025 ORDER DATED: 16/04/2025
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Kutch, which came to be registered as Criminal Case No.
2558/2019. The respondent No.2 was duly served with the
summons and he appeared before the learned Trial Court and
the entire evidence of the applicant was taken on record. During
the trial, the applicant had produced a copy of Income Tax
Return at Exh.36, wherein, the amount of Rs.4,35,000/- was
loaned to the respondent No.2 is shown but the learned Trial
Court has not appreciated the documentary evidence including
the Income Tax Return at Exh.36 in proper perspective and has
considered that the applicant did not have the financial capacity
to pay the amount of Rs.4,35,000/- to the applicant and has
acquitted the respondent No.2 from the offence under Section
138 of the N.I.Act. Learned advocate submits that the applicant
has a good case on merits, and hence, the application for leave
to appeal may be granted.
4. Learned APP Ms. Jirga Jhaveri for the respondent
State has submitted that the learned Trial Court has considered
all the documents produced by the applicant and has also
considered the evidence and has passed the impugned order of
acquittal considering the settled principles of law and hence, the
leave to appeal may not be granted.
5. Considering the submissions of learned advocate for
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R/CR.MA/5536/2025 ORDER DATED: 16/04/2025
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the applicant as also the paper book on record and the impugned
judgment and order, prima facie, it appears that the applicant
has produced all the necessary documents including the Income
Tax Return at Exh.36 as evidence in support of his case but the
learned Trial Court has failed to appreciate the entire evidence
in proper perspective, and hence, in the peculiar facts and
circumstances of the case and in the considered opinion of this
Court, the application deserves to be considered. Consequently,
the application for leave to appeal is granted and disposed off
accordingly.
(S. V. PINTO,J)
F.S.KAZI
