Gujarat High Court
Shah Paragkumar Govindlal vs Jatin M. Shah on 28 April, 2025
NEUTRAL CITATION
R/CR.MA/24586/2024 ORDER DATED: 28/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 24586
of 2024
In F/CRIMINAL APPEAL NO. 47158 of 2024
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SHAH PARAGKUMAR GOVINDLAL
Versus
JATIN M. SHAH & ANR.
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Appearance:
MR. ALTAF Y CHARKHA(7271) for the Applicant(s) No. 1
Ms. Dhwani Tripathi, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 28/04/2025
ORAL ORDER
1. The present application is filed by the applicant -
original complainant under Section 419(4) of the Bharatiya
Nagrik Suraksha Sanhita, 2023 (for short "BNSS") seeking
leave to file an appeal against the judgment and order dated
04.11.2024 passed by the learned 3 rd Judicial Magistrate,
Godhra (hereinafter referred to as the "learned Trial Court")
in Criminal Case No. 6250 of 2023, whereby the respondent
No. 1 - original accused came to be acquitted from the
offence under Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as 'the N I Act").
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1.1 The respondent No. 1 is hereinafter referred to as "the
accused" as he stood in the original case for the sake of
convenience, clarity and brevity.
2. The brief facts culled out from the memo of the present
application as well as the impugned judgment and order
and paper book filed by the applicant are as under:
2.1 The applicant filed a complaint against the accused
under Section 138 of the Act, as the accused had taken a
loan of Rs.5,00,000/- from the applicant and the accused
had issued cheque No.000152 for the amount of
₹5,00,000/- dated 11.09.2023 from his account with Bank
of Baroda, Umbergaon, Valsad Branch. The applicant
deposited the cheque on 12.09.2023 in his account and the
cheque was dishonored and the reason mentioned in the
return memo was "Funds Insufficient". The applicant sent
the statutory demand notice to the accused on 06.10.2023
which was duly served on 09.10.2023 and an evasive reply
was given by the accused and no payment was made and
hence the applicant filed the criminal complaint before the
Court of the Judicial Magistrate, Godhra under Section 138
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of the N I Act, 1881 which was registered as Criminal Case
no. 6250 of 2023.
2.2 The accused was served with the summons and the
accused appeared before the learned Trial Court and after
his plea was recorded at Exh. 07 the evidence of the
applicant was taken on record. The applicant was examined
on oath and 07 documentary evidences were produced in
support of his case and after the closing pursis at Exh. 20
was filed, the further statement of the accused under
Section 313 of the Code of Criminal Procedure was recorded
wherein the accused stated that the disputed cheque was
given to help the applicant in 2017 and the cheque has been
misused in 2023 and a false complaint has been filed. The
accused refused to step into the witness box but 02
documentary evidences were produced in his defence and
after the arguments of the learned advocates for both the
parties were heard, by the impugned judgment and order,
the learned Trial Court acquitted the accused from the
offence under Section 138 of the N I Act.
3. Being aggrieved and dissatisfied with the same, the
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applicant has preferred the present application seeking
leave to appeal mainly stating that the learned Trial Court
has not properly interpreted the evidence and has misread
the evidence and the impugned judgment is perverse,
erroneous and contrary to law.
4. Heard learned advocate Mr. Altaf Y. Charkha
appearing for the applicant and learned APP Ms. Dhwani
Tripathi for the respondent - State.
5. Learned Advocate Mr. Altaf Y. Charkha for the
applicant submits that the learned Trial Court has not
appreciated that the applicant has successfully established
that the cheque in question was issued by the accused from
the bank account maintained by him. The applicant has
proved that the cheque was written by the accused and it
was dishonoured and as the applicant is the holder in due
course of the cheque in question the statutory presumption
under Section 139 of the N I Act is to be drawn in favour of
the applicant. The learned Trial Court has not appreciated
the provisions of Section 118 and 138 of the NI Act in
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proper perspective. The accused had failed to rebut the
presumption and hence the judgement and order of
acquittal is bad in law and the leave to appeal must be
granted.
6. Learned APP Ms. Dhwani Tripathi for the respondent -
State has submitted that the learned Trial Court has
appreciated all the evidence in detail in light of the citations
referred to in the judgement and has passed the judgement
and order of acquittal which is proper and no interference is
required and hence the application for leave to appeal must
be rejected.
7. Considering the submissions of learned advocate for
the applicant as also the impugned judgement and order
and the paper book produced by the learned advocate for
the applicant on record the accused has refused to step into
the witness box but has produced two documentary
evidence on record at Exh. 24 and 25, which is cheque
clearing confirmation and bank account statement. From
the documents on record the financial transaction between
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the parties has been proved, but the documents on record
have not been appreciated by the learned Trial Court in
proper perspective and the application seeking leave to
appeal requires consideration.
8. Consequently, the application is allowed and disposed
of accordingly.
(S. V. PINTO,J)
VASIM S. SAIYED
