Gujarat High Court
Pramodbhai Popatbhai Barvaliya(Poa Of ... vs State Of Gujarat on 1 April, 2025
NEUTRAL CITATION
R/CR.MA/4826/2025 ORDER DATED: 01/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 4826 of
2025
In R/CRIMINAL APPEAL NO. 2129 of 2024
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PRAMODBHAI POPATBHAI BARVALIYA(POA OF VILASBEN
PRAMODBHAI BARVALIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR DILIP L KANOJIYA(3691) for the Applicant(s) No. 1
MS. DHWANI TRIPATHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 01/04/2025
ORAL ORDER
1. The present application is filed by the applicant - original
complainant under Section 419(4) of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (hereinafter referred to as "the BNSS") seeking leave to
appeal against the judgment and order dated 10.02.2023 passed by the
learned 11th Additional Sessions Judge, Surat acquitting the respondent
No. 2 in Criminal Appeal No. 338 of 2021 filed by the respondent No. 2
challenging the judgment and order of conviction passed by the learned
19th Additional Chief Judicial Magistrate, Surat ( hereinafter referred to as
"the learned Trial Court) in Criminal Case No. 2445 of 2017 for the
offence under Section 138 of the Negotiable Instrument Act, 1881.
(hereinafter referred to as the NI Act).
NEUTRAL CITATION
R/CR.MA/4826/2025 ORDER DATED: 01/04/2025
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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.
2. Heard learned advocate Mr. Sagar D Vaghariya for learned
advocate Mr. Dilip Kanojiya and learned Additional Public Prosecutor
Ms. Dhwani Tripathi for the respondent - State. Perused the judgement
and order of acquittal passed by the learned Trial Court.
3. Learned advocate Mr. Sagar D Vaghsiya for learned advocate Mr.
Dilip Kanojiya appearing for the applicant submits that the applicant is
doing the business of Yarn and Art Silk Cloth in the name and style of M/
s. Karishma Creation and the respondent No. 2 was doing the business of
selling and purchasing cloth. The respondent No. 2 had purchased goods
by various invoices and goods worth Rs.29,28,674/- was purchased in the
year 2015 towards which cheque No. 077224 dated 24.10.2016 for an
amount of Rs.25,04,550/- from his account with Bank of Maharastra was
issued. The cheque was deposited by the applicant in his account with
Surat Bank of Maysore, K.K.Road, Udhna Branch, Surat and the cheque
was returned unpaid with endorsement "Funds Insufficient. The demand
statutory notice was given and an evasive and vague reply was given by
the respondent No. 2 but the payment was not paid and hence the
complaint under Section 138 of the NI Act was filed before the Court of
Chief Judicial Magistrate, Surat , which came to be registered as Criminal
NEUTRAL CITATION
R/CR.MA/4826/2025 ORDER DATED: 01/04/2025
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Case No. 2445 of 2017. After the respondent No. 2 appeared before the
learned Trial Court, the entire evidence of the applicant and the
respondent No. 2 was taken on record the learned Trial Court convicted
the respondent No. 2 for the offence of under Section 138 of NI Act and
sentence the respondent No. 2 to simple imprisonment for a period of
eighteen months and ordered the respondent No. 2 to pay twice the
amount of cheque as compensation to the applicant within a period of
thirty days under Section 357(3) of the Code of Criminal Procedure,
1973.
3.1 Being aggrieved and dissatisfied with the judgment and order of
conviction, the respondent No. 2 filed Criminal Appeal No. 338 of 2021
before the Court of learned Sessions Judge, Surat and after the arguments
of the learned advocates for both the parties were heard, the learned 11 th
Additional Sessions Judge, Surat was pleased to allow the appeal and
acquit the respondent No. 2 for the offence under Section 138 of the NI
Act.
4. Learned advocate for the applicant submits that the applicant
had produced the copies of the invoices as also other necessary
documents and has proved the legally enforceable debt and the same was
properly appreciated by the learned trial Court. That the learned Sessions
Judge, Surat even though the evidence was not rebutted by the respondent
NEUTRAL CITATION
R/CR.MA/4826/2025 ORDER DATED: 01/04/2025
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No.2 considered the presumption duly rebutted and has passed the
impugned judgment and order of acquittal. Learned advocate for the
applicant submits that all the documents prove that there were business
transaction between the parties and the amount was due towards which
the cheque in question was given and the cheque was given towards the
legally enforceable due and hence the application seeking leave to appeal
must be granted.
4. Learned APP Ms. Dhwani Tripathi for the respondent - State has
submitted that the learned Trial Court has appreciated all the evidence in
proper perspective and no interference is required and hence the
application for leave to appeal must be rejected.
5. Having heard the learned advocate for the applicant and on perusal
of the judgment and order passed by the learned trial Court as well as
learned 11th Additional Sessions Judge, Surat, prima facie, it appears that
the same set of evidence is appreciated by the learned trial Court has well
as learned Sessions Court in a different manner. The application seeking
leave to appeal deserves consideration. Consequently, the same is
allowed.
(S. V. PINTO,J)
VVM
