Gujarat High Court
Kishorbhai Babubhai Satasiya vs State Of Gujarat on 5 February, 2025
NEUTRAL CITATION
R/CR.MA/14697/2023 ORDER DATED: 05/02/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 14697 of 2023
(FOR LEAVE TO APPEAL)
In
R/CRIMINAL APPEAL NO. 1976 of 2023
=============================================
KISHORBHAI BABUBHAI SATASIYA
Versus
STATE OF GUJARAT & ANR.
=============================================
Appearance:
MR NIKUNJ SAVALIYA(12918) for the Applicant(s) No. 1
MR RATILAL V SAKARIA(6613) for the Applicant(s) No. 1
MR BHARGAV PANDYA, APP for the Respondent(s) No. 1
=============================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 05/02/2025
ORAL ORDER
1. The present application is filed by the applicant -
original complainant under Section 378(4) of the Code of Criminal
Procedure, 1973 seeking leave to file an appeal against the
judgment and order dated 01.04.2023 passed by the learned 7 th
Additional Judicial Magistrate, Gandhinagar in Criminal Case No.
97 of 2020, whereby, the respondent No.2 - original accused came
to be acquitted from the charge levelled against him under Section
138 of Negotiable Instrument Act, 1881 (hereinafter referred to as
"N.I.Act"). The respondent No.2 is hereinafter referred to as "the
accused" as he stood in the original case for the sake of
convenience, clarity and brevity.
NEUTRAL CITATION
R/CR.MA/14697/2023 ORDER DATED: 05/02/2025
undefined
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 is in the agricultural business and the
accused is doing the business of seasonal food in the name of
"Tarang Trading Company". That the accused wanted some amount
for development of his business and the applicant gave the amount
of Rs.26,00,000/- till 01.04.2018 and an amount of rs.25,00,000/-
from 01.04.2018 to 28.02.2019 and in all, an amount of
Rs.51,00,000/- was given to the accused. That when the applicant
demanded the amount, the accused gave Cheque No.000071 of
Rs.26,00,000/- and Cheque No.000072 of Rs.25,00,000/-. That both
the cheques dated 31.07.2019 were of HDFC bank, Galaxy Avenue,
Galaxy Cinema, Naroda Branch and also executed an agreement on
a stamp paper of Rs.100/- on 07.03.2019. That both the cheques
were deposited in the account of the applicant with Canara Bank,
Kundasan Branch on 29.10.2019 for clearing and both the cheques
returned with the endorsement of "funds insufficient" on
30.10.2019. The applicant gave a statutory demand notice through
his advocate on 25.11.2019, which was duly served tot he accused
on 26.11.2019 and the accused did not sent any reply nor repaid
the amount, and hence, the complainant filed the complaint under
NEUTRAL CITATION
R/CR.MA/14697/2023 ORDER DATED: 05/02/2025
undefined
Section 138 of the N.I.Act before the learned Additional Chief
Judicial Magistrate, Gandhinagar.
2.2 The accused was served with the summons and
appeared before the learned Trial Court and his plea was recorded
and the evidence of the applicant was taken on record. The
complainant examined himself as a witness at Exh. 4 and produced
15 documentary evidences and after the closing pursis was filed,
the further statement of the accused was recorded under Section
313 of the Code of Criminal Procedure. After the arguments of the
learned advocate for the applicant and the learned advocate for the
accused were heard and the learned Trial Court was pleased to
acquit the accused from the offence under Section 138 of the
N.I.Act.
3. Being aggrieved and dissatisfied with the impugned
judgment and order of acquittal, the applicant has preferred the
present leave to appeal mainly stating that the accused had taken
the amount and had issued two cheques, which have returned
unpaid but, the learned Trial Court has not appreciated the
evidence properly. The applicant has stated that the agreements
were executed and the accused has not repaid the amount, and
hence, the leave to appeal must be granted.
NEUTRAL CITATION
R/CR.MA/14697/2023 ORDER DATED: 05/02/2025
undefined
4. Heard learned advocate Mr.Nikunj Savaliya for the
applicant and learned APP Mr.Bhargav Pandya for the respondent
State.
5. Learned advocate Mr.Nikunj Savaliya for the applicant
has submitted that the complainant has proved that he had loaned
amount to the accused and two cheques signed by the accused
were given him and the agreement in the presence of two
witnesses has been executed and has also been signed by the
accused but, the learned Trial Court has not appreciated the
evidence in proper perspective. The learned Trial Court has
concluded that the cheques were of "Tarang Trading Company"
but, has not considered that the accused was the proprietor of
"Tarang Trading Company" and he has issued the cheques and has
wrongly appreciated the evidence, and hence, the leave to appeal
may be allowed.
6. Learned APP Mr. Bhargav Pandya has submitted that
the learned Trial Court has considered the oral and documentary
evidence and has passed the impugned judgement and order of
acquittal and no interference is required and hence, leave to appeal
must not be granted.
7. On perusal of the impugned judgment and the submissions of
NEUTRAL CITATION
R/CR.MA/14697/2023 ORDER DATED: 05/02/2025
undefined
the learned advocate for the applicant, prima-facie it appears that
the documents produced at Exh.13 was executed between the
parties and the agreement was executed in the presence of the
Notary and the witnesses. As far as the agreement at Exh.13 is
concerned, in the statement under Section 313 of the Cr.P.c., the
accused has stated that the agreement is false and against the law
but the accused has not stepped into witness box or examined any
witnesses and has not shown how the agreement is false or under
what circumstances, the agreement has been executed. Prima-
facie, the documents produced by the applicant on record have not
been appreciated in the true perspective by the learned Trial
Court, and hence, the application deserves consideration.
8. In the peculiar facts and circumstances of the case, in
the considered opinion of this Court, the leave to appeal must be
granted, and consequently, the application is granted and is
disposed of accordingly.
(S. V. PINTO,J)
F.S.KAZI
