Gujarat High Court
Amrutbhai Mudjibhai Patel vs State Of Gujarat on 16 April, 2025
NEUTRAL CITATION
R/CR.MA/5403/2025 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. 5403 of 2025
In
F/CRIMINAL APPEAL NO. 10285 of 2025
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AMRUTBHAI MUDJIBHAI PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. PANAM C SONI(7035) 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 21.02.2025 passed by the learned Judicial
Magistrate, First Class, Virpur, District Mahisagar (hereinafter
referred to as the "learned Trial Court") in Criminal Case No.
712/2023, 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.Panam Soni for the
NEUTRAL CITATION
R/CR.MA/5403/2025 ORDER DATED: 16/04/2025
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applicant and learned APP Ms.Jirga Jhaveri for the respondent
No.1 - State.
3. Learned advocate Mr.Panam Soni for the applicant
submits that the applicant was doing the business of cement and
and there was a good relation between the applicant and the
respondent No.2. As in June, 2019, the respondent no.2 was in
need of money, he approached the applicant and the applicant
gave an amount of Rs.5,50,000/-, which was to be repaid within
one year. That as the amount was not paid by the respondent
No.2, on demand. the respondent No.2 issued cheque
No.000005 dated 17.05.2023 of Rs.5,50,000/- from his account
with the HDFC Bank, Malpur Road, Modasa Branch. The cheque
was deposited by the applicant in his account, but the cheque
returned unpaid with the endorsement "Account Closed". The
demand statutory notice was given, which was duly served to the
respondent No.2 but the respondent No.2 did not send any reply
to the notice nor paid the amount, and hence, the applicant filed
the complaint under Section 138 of N.I.Act before the Court of
Judicial Magistrate, First Class, Virpur, District Mahisagar,
which came to be registered as Criminal Case No. 712/2023. The
respondent No.2 was duly served and he appeared before the
learned Trial Court and entire evidence of the applicant was
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R/CR.MA/5403/2025 ORDER DATED: 16/04/2025
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taken on record. During trial, the applicant has produced a copy
of the passbook of his account with Bank of Baroda at Exh.24 to
prove that he had the financial capacity and had withdrawn the
amount of Rs.4,00,000/- from his account with Bank of Baroda
and had also Rs.1,50,000/- in cash to give the respondent No.2.
After appreciation of the entire evidence on record, the learned
trial Court was pleased to conclude that the applicant has not
proved his legally enforceable debt and has not believed that the
amount was withdrawn from the account of the applicant.
Learned advocate for the applicant submits that the respondent
No.2 had raised the defence that the respondent No.2 had given
the cheque to the applicant towards purchase of cement but did
not produce any bills or documentary evidence that he had
purchased the cement. Learned advocate for the applicant
submits that the applicant has successfully proved his financial
capacity as also the fact that he had withdrawn the amount of
Rs.4,00,000/- from his account and Rs.1,50,000/- in cash to give
the applicant but the learned trial Court has not appreciated the
same and by the impugned judgment and order was pleased to
acquit 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.
NEUTRAL CITATION
R/CR.MA/5403/2025 ORDER DATED: 16/04/2025
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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
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 a copy of
the passbook of his account with Bank of Baroda 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
