Gujarat High Court
Vishnubhai Jerambhai Desai vs State Of Gujarat on 7 August, 2025
NEUTRAL CITATION
R/CR.MA/12516/2025 ORDER DATED: 07/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 12516
of 2025
In F/CRIMINAL APPEAL NO. 23723 of 2025
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VISHNUBHAI JERAMBHAI DESAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR TANMAY B KARIA(6833) for the Applicant(s) No. 1
MS. CHETNA SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/08/2025
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 "B.N.S.S.") seeking leave to file an appeal
against the order dated 23.04.2025 passed by the learned 6 th Additional
Chief Judicial Magistrate, Ahmedabad (Rural) (hereinafter referred to as
the "learned Trial Court") in Criminal Case No. 14364 of 2023, 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 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").
NEUTRAL CITATION
R/CR.MA/12516/2025 ORDER DATED: 07/08/2025
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2. Heard learned advocate Mr. Tanmay B Karia appearing for the
applicant and learned APP Ms. Chetna Shah for the respondent No. 2 -
State. Perused the impugned judgment and order and paper book filed by
the learned advocate for the applicant.
3. Learned advocate Mr. Tanmay Karia for the applicant submits that
the applicant and the respondent No. 2 were friends and the daughter of
the respondent No. 2 was to get married and the respondent No. 2 was in
need of some finance and had requested the applicant for an amount of
Rs.4,00,000/- which was given as a hand loan. Towards the outstanding
amount the respondent No. 2 issued checque No. "009396" dated
28.6.2022 for Rs.2,00,000/- and cheque No. "009397" dated 30.6.2022
for Rs. 2,00,000/- from his account with the Mahila Vikas operative bank
limited, Bhatta Vasna, Ahmedabad Branch. The Cheques were deposited
by the applicant in his account with Ahmedabad District Cooperative
Bank Limited, Ahmedabad Branch but the cheques returned unpaid with
the endorsement "Funds Insufficient". The demand statutory notice was
given, which was duly served to the respondent No. 2 but amount was not
being paid within the stipulated period and hence the applicant filed a
criminal complaint under Section 138 of the Negotiation Instruments Act,
before the Court of learned Chief Metropolitan Magistrate, which came to
be registered as per Criminal Case No. 14364 of 2023. The learned Trial
NEUTRAL CITATION
R/CR.MA/12516/2025 ORDER DATED: 07/08/2025
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Court was pleased to take cognizance and issue summons to the
respondent No. 2 abd the summons had been served to the respondent No.
2 and he appeared before the learned trial Court. Thereafter the
respondent No. 2 did not appear and his plea could not be recorded but
the applicant had filed the affidavit of examination-in-chief at Exh. 4 and
had also given an application at Exh.5 for exhibiting the documents
which were vide a list at Exh. 3. The application at Exh.5 was kept
"fixed for hearing" and during this time, the applicant or his learned
advocate did not remain present before learned trial Court and the learned
trial Court was pleased to pass the impugne order below Exh.1 and
dismiss the complaint for default. Learned advocate for the applicant
submits that the affidavit of examination-in-chief and the documents were
on record and the same have not been appreciated in a proper perspective.
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. Chetna Shah for the respondent No 1 - State and
has submitted that necessary orders may be passed after perusing the
copy of the Rojkam produced on record by the learned advocate for the
applicant.
NEUTRAL CITATION
R/CR.MA/12516/2025 ORDER DATED: 07/08/2025
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5. Considering the submissions of learned advocate for the applicant
as also the copy of the Rojkam produced on record by the learned
advocate for the applicant, it appears that the entire evidence of the
applicant including the affidavit of examination in chief and the
documentary evidence were produced on record, but the learned Trial
Court has not appreicated the same in proper perspective and has passed
the impugned order under Section 256 of the Code of Criminal
Procedure, 1973 and hence, the application seeking leave to appeal
deserves consideration. Consequently, the same is allowed.
(S. V. PINTO,J)
VVM
