Gujarat High Court
Hasmukhbhai Chogaji Kumawat Prop. Of ... vs State Of Gujarat on 28 April, 2025
NEUTRAL CITATION
R/CR.MA/5785/2025 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. 5785 of
2025
In F/CRIMINAL APPEAL NO. 10149 of 2025
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HASMUKHBHAI CHOGAJI KUMAWAT PROP. OF AMBIKA VASAN
BHANDAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR JIGAR D DAVE(6528) 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 : 28/04/2025
ORAL ORDER
1. The present application is filed by the applicant - original
complainant under Section 419(4) of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (for short "BNSS") seeking leave to file an appeal against
the order dated 10.01.2025 passed by the learned 4 th Additional Chief
Judicial Magistrate, Ahmedabad Rural (hereinafter referred to as the
"learned Trial Court") in Criminal Case No. 1650 of 2020, whereby the
learned Trial Court has dismissed the Criminal Case for want of
prosecution, as the applicant did not remain present, under the provisions
of Section 256(3) of Cr.P.C. and the respondent No. 2 - original accused
came to be acquitted from the offence under Section 138 of the
Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act')
2. Heard learned advocate Mr. Jigar D Dave for the applicant and
learned Additional Public Prosecutor for the respondent-State. Though
NEUTRAL CITATION
R/CR.MA/5785/2025 ORDER DATED: 28/04/2025
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served, the respondent No. 2 has not chosen not to appear either in person
or through his advocate.
3. Learned advocate for the applicant submits that the applicant is the
proprietor of Ambika Vasan (Utensils) Bhandar and the respondent No. 2
is also doing the business in the name of Ambika Steel. The respondent
No. 2 was working at the shop of the applicant and had later on started his
own business and used to purchase the goods in the name of the firm of
the applicant, and towards the outstanding amount, cheque No. 503677
dated 10.12.2019 for an amount of Rs.10,00,000/- from his account with
State Bank of India, Memnagar, Ahmedabad Branch was given. The
cheque was deposited by the applicant in his account with the
Ahmedabad Mercantile Cooperative Bank Limited, Memnagar,
Ahmedabad Branch, but the cheque returned unpaid with the
endorsement "Account Closed." The demand statutory notice was issued
to the respondent No. 2, which was served to the respondent No. 2, but no
reply was given and no payment within the stipulated period was made,
and hence, the applicant has filed a complaint under Section 138 of the
N.I. Act, 1881 before the Court of the Chief Judicial Magistrate,
Ahmedabad Rural, which came to be registered as Criminal Case No.
1650 of 2020. The respondent No. 2 had appeared before the learned
Trial Court, and after the plea of the respondent No. 2 was recorded, the
applicant had submitted oral and documentary evidence before the
learned Trial Court. Learned advocate for the applicant submits that the
applicant has produced the original bills, by which the goods were
purchased, at Exh. 38 and Exh. 165, and the bills were not disputed by the
respondent No. 2. After the evidence of the applicant was closed, the
further statement of the applicant under Section 313 of the Code of
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R/CR.MA/5785/2025 ORDER DATED: 28/04/2025
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Criminal Procedure, 1973 was recorded, and the respondent No. 2 did not
step into the witness box but examined one witness to prove that he had
closed the account prior to the issuance of the cheque. Learned advocate
for the applicant submits that the bills were not disputed by the
respondent No. 2, and even though the applicant had proved by the
documentary evidence that the cheque was given for the legal enforceable
due, the learned Trial Court has not appreciated the documentary
evidence in proper perspective. Moreover, the defense of the respondent
No. 2 is that the cheque was given towards insurance premium, but the
said aspect has not been rebutted in the cross-examination of the
applicant. Learned advocate for the applicant submits that the applicant
has a good case on merits and the application seeking leave to appeal
must be granted.
4. Learned APP Ms. Jirga Jhaveri for the respondent-State has
submitted that the learned Trial Court has appreciated the evidence and
has passed the impugned judgment and order and no interference is
required. Hence, the application seeking leave to appeal may be rejected.
5. Considering the arguments canvassed by the learned advocate for
the applicant as also on perusal of the copy of the paper book produced
on record, prima facie, it appears that the documentary evidence has not
been properly appreciated by the learned Trial Court. The application
seeking leave to appeal deserves consideration, and consequently, the
same is allowed.
(S. V. PINTO,J)
VVM
