Gujarat High Court
Pareshkumar Somalal Soni vs State Of Gujarat on 16 April, 2025
NEUTRAL CITATION
R/CR.MA/5472/2025 ORDER DATED: 16/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO.5472 of 2025
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 10430 of 2025
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PARESHKUMAR SOMALAL SONI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR NIRAV K PADHIYAR(5678) 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 08.01.2025 passed by the learned 5 th Additional
Chief Judicial Magistrate, First Class, Banaskantha at Palanpur
(hereinafter referred to as the "learned Trial Court") in Criminal
Case No. 5647/2019, 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.Nirav Padhiyar for the
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R/CR.MA/5472/2025 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.Nirav Padhiyar for the
applicant submits that the applicant was doing the business of
jewelry and money lending and has a licence for lending the
money. As the respondent no.2 was in need of Rs.5,00,000/- to
purchase a tractor, he had taken an amount of Rs.5,00,000/-
from the applicant for a period of one year. That on demand, the
respondent No.2 issued cheque No.001808 dated 07.11.2019 of
Rs.5,00,000/- from his account with Banas Jilla Madhyasth
Sahakari Bank, Sisrana Branch. The cheque was deposited by
the applicant in his account, 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
and did not pay up the amount, and hence, the applicant filed
the complaint under Section 138 of N.I.Act before the Court of
Chief Judicial Magistrate, Banaskantha at Palanpur, which came
to be registered as Criminal Case No. 5647/2019. 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 trial, talks of
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R/CR.MA/5472/2025 ORDER DATED: 16/04/2025
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compromise were going on and on that ground, the respondent
No.2 had taken a number of adjournments and had also paid an
amount of Rs.50,000/- in two installments. The main defence of
the respondent No.2 was that the father of the respondent No.2
had purchased gold and silver jewelry and the applicant had
filed various complainants under Section 138 of the N.I.Act
against various persons. Learned advocate for the applicant
submits that the learned trial Court has not appreciated the
documentary evidence in proper perspective and even though
from the documentary evidence, the legally recoverable debt
was proved, the learned Trial Court 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.
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R/CR.MA/5472/2025 ORDER DATED: 16/04/2025
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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 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
