Gujarat High Court
Vishalsinh Rajendrasinh Bihola vs Bhaveshkumar Manubhai Prajapati on 5 August, 2025
NEUTRAL CITATION
R/CR.MA/9817/2025 ORDER DATED: 05/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 9817 of
2025
In F/CRIMINAL APPEAL NO. 7640 of 2025
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VISHALSINH RAJENDRASINH BIHOLA
Versus
BHAVESHKUMAR MANUBHAI PRAJAPATI & ANR.
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Appearance:
MR KEYUR A VYAS(3247) for the Applicant(s) No. 1
MS. CHETNA SHAH, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 05/08/2025
ORAL ORDER
1. The present application is filed by the applicant - original
complainant under Section 419 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (hereinafter referred to as "the BNSS") seeking leave to
appeal against the judgment and order dated 12.12.2024 passed by the
learned 3rd Additional Sessions Judge, Gandhinagar (hereinafter referred
to as the " the learned appellate Court) acquitting the respondent No. 1 in
Criminal Appeal No. 163 of 2024 filed by the respondent No. 1
challenging the judgment and order of conviction passed by the learned
Judicial Magistrate First Class, Mansa in ( hereinafter referred to as "the
learned Trial Court) in Criminal Case No. 362 of 2021 for the offence
under Section 138 of the Negotiable Instrument Act, 1881. (hereinafter
referred to as the NI Act).
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R/CR.MA/9817/2025 ORDER DATED: 05/08/2025
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2. Heard learned advocate Mr. Keyur Vyas for the applicant and
learned APP Ms. Chetna Shah for the respondent No.1 - State.
3. Learned advocate Mr. Keyur Vyas for the applicant submits that
the applicant and the respondent No. 1 were known to each other and
were friends. The respondent No. 1 was in need of some finance and
requested the applicant to advance some amount and the applicant had
given hand loan of Rs. 5,50,000/- to the respondent No. 1, which was to
be returned within a period of six months. The respondent No. 1 had
issued cheque No. "102691" dated 10.03.2021 for an amount of
Rs.5,50,000/- from his account with Canara Bank, Jaliyano Math Branch,
Gandhinagar. The cheque was deposited by the applicant in his account
with Bank of India, Mansa Branch but the cheque returned unpaid with
the endorsement " kindly contact the drawer / drawee bank and please
present again" . The applicant sent demand statutory notice which was
duly served to the respondent No. 1. The respondent No.1 filed an
evasive reply but did not repay the amount within stipulated period and
hence, the applicant filed a criminal complaint under Section 138 of the
NI Act before the Court of the learned Judicial Magistrate First Class,
Mansa, which came to be registered as Criminal Case No. 362 of 2021.
After the respondent No. 1 was duly served with the summons, he
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appeared before the learned trial Court and the applicant has submitted
his affidavit of examination-in-chief at Exh.5 and produced twelve
documentary evidence in support of his case. After the closing pursis of
the applicant was filed, the further statement under Section 313 of the
Cr.P.C was recorded, wherein, the respondent No. 1 denied all the
allegations and stated that the cheque in question has been misused by the
applicant. The respondent No.1 examined one witness at Exh.33 and
produced two documentary evidence in support of his case. After the
arguments of the learned advocates for both parties were heard, the
learned trial Court, by a judgement and order dated 24.04.2024 was
pleased to convict the respondent No. 1 for the offence of under Section
138 of N.I.Act and sentence the respondent No. 1 to simple imprisonment
for a period of six months and ordered the respondent No. 1 to pay an
amount of Rs.5,50,000/- within a period of two months from the date of
the order as compensation to the applicant and in default to undergo
simple imprisonment for three months.
3.1 Being aggrieved and dissatisfied with the judgment and order of
conviction, the respondent No. 1 filed Criminal Appeal No. 163 of 2024
before the Court of learned Sessions Judge, Gandhinagar and after the
arguments of the learned advocates for both the parties were heard, the
learned 3rd Additional Sessions Judge, Gandhinagar, by the impugned
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R/CR.MA/9817/2025 ORDER DATED: 05/08/2025
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judgement and order dated 12.12.2024, was pleased to allow the appeal
and acquit the respondent No. 1 for the offence under Section 138 of the
NI Act.
4. Learned advocate for the applicant further submits that the learned
trial Court has appreciated all the evidence and the applicant had proved
by documentary evidence, his financial capacity to advance the amount of
Rs.5,50,000/- and the defence taken by the respondent No. 1 was that the
cheque in question was given to his brother, which was misused by the
applicant. The defence was not proved and the presumption has not been
rebutted, but the learned appellate Court, without properly appreciating
the evidence, concluded that the presumption was rebutted and the
applicant did not have the financial capacity to advance the amount to the
respondent No.1. Learned advocate for the applicant submits that the
applicant has good case on merits and the application seeking leave to
appeal must be granted.
5. Learned APP Ms. Chetna Shah for the respondent No.2 - State
submits that learned appellate Court has appreciated all the evidence and
no interference is required and hence the application may be rejected.
6. Considering the submissions advanced by the learned advocate for
the applicant as also on perusal of the impugned judgment and order
passed by the learned Sessions Judge, Gandhinagar and the judgment and
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R/CR.MA/9817/2025 ORDER DATED: 05/08/2025
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order of conviction passed by the learned trial Court, prima-facie, it
appears that the same set of evidence have been appreciated by two
Courts in a different manner and hence, the issue requires consideration.
Hence, the application seeking leave to appeal deserves consideration.
Consequently, the same is allowed.
(S. V. PINTO,J)
VVM
