Gujarat High Court
Jatin Traders Thro Prop. Patel ... vs Jay Bahuchar Traders Partner Patel ... on 23 April, 2025
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R/CR.MA/7554/2025 ORDER DATED: 23/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 7554 of
2025
In F/CRIMINAL APPEAL NO. 14640 of 2025
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JATIN TRADERS THRO PROP. PATEL JATINKUMAR LALLUBHAI
Versus
JAY BAHUCHAR TRADERS PARTNER PATEL VISHAL BHARATBHAI &
ANR.
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Appearance:
MR DIPAN DESAI(2481) for the Applicant(s) No. 1
MS. JIRGA JHAVERI, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 23/04/2025
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 05.03.2025 passed by learned Additional Chief Judicial
Magistrate, Patan (hereinafter referred to as the learned Trial Court") in
Criminal Case No. 1038 of 2020, whereby, the learned Trial Court
acquitted the respondent No. 1 for the offence punishable under Sections
138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as NI
Act, for short).
2. Heard learned advocate Mr. Dipan Desai for the applicant and
learned Additional Public Prosecutor Ms. Jirga Jhaveri for the
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respondent-State.
3. Learned advocate Mr. Dipan Desai for the applicant submits that
the applicant is the proprietor of Jatin Traders and the respondent No. 1 is
doing business in the name of Jay Bahuchar Traders. The applicant and
the respondent No. 1 had business transactions and from the year 2018,
the business transactions went on and the amount of Rs.4,83,695/- was
outstanding, towards which, the respondent No. 1 issued cheque No.
000458 dated 02.09.2020 for Rs.4,83,695/- from his account with Patan
Nagarik Sahakari Bank Limited, Patan Branch. The said cheque was
deposited by the applicant in his account but the same returned unpaid
with the endorsement "Funds Insufficient". The demand statutory notice
was issued and the same came to be duly served to the respondent No. 1
but the respondent No. 1 did not repay the amount and hence, the
applicant No. 1 filed the complaint under Section 138 of the NI Act, 1881
before the Court of Chief Judicial Magistrate, Patan, which came to be
registered as Criminal Case No. 1038 of 2020.
2.2 The respondent No. 1 was duly served with the summons and
appeared before the learned Trial Court and after the plea of the
respondent No. 1 was recorded at Exh.5, the entire evidence of the
applicant was taken on record. The applicant stepped into the witness-box
and produced thirteen documentary evidences to prove the legally
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enforceable debt and after the arguments of the learned advocates for the
respective parties were heard, the learned Additional Chief Judicial
Magistrate, Patan was pleased to pass the impugned judgment and order
and acquit the respondent No. 1 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 Nagarik Suraksha Sanhita, 2023.
4. Learned advocate Mr. Dipan Desai for the applicant submits that
only reason for acquittal considered by the learned Trial Court is that Jay
Bahuchar Traders was a partnership firm and the Partnership Farm was
not joined as party to the proceedings in light of the judgment of the
Anita Hada Vs. Godfathers Travels and Tours Limited , but in fact, in the
evidence on record, it was proved that Jay Bahuchar Traders was not a
partnership firm a the proprietary concern as in the deed dated
05.03.2019, the other partner Hashmukhbhai Ranchhodbhai Chaudhary
had retired from the partnership firm and the surviving partner Vishal
Bharatbhai Patel had continued to run the business in the name and style
of Jay Bahuchar Traders.
4.1 Learned advocate Mr. Dipan Desai submits that the release deed of
the partner was produced at Exh. 46 but the same has not been
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appreciated in proper perspective by the learned Trial Court. Learned
advocate for the applicant further submits that the cheque is dated
02.09.2000, Jay Bahuchar Traders is a proprietary firm ran by surviving
partner. Learned advocate submits that the applicant has a good case on
merits and the application seeking leave to appeal must be allowed.
5. 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.
6. Considering the submissions advanced by the learned advocate for
the applicant as also on perusal of the paper book produced on record by
the learned advocate for the applicant, more particularly, the deed which
is produced at Exh.46, 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
