Gujarat High Court
Narin Murlidhar Lalwani vs State Of Gujarat on 13 February, 2025
NEUTRAL CITATION
R/CR.MA/10425/2023 ORDER DATED: 13/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 10425 of 2023
(FOR LEAVE TO APPEAL)
In
R/CRIMINAL APPEAL NO. 1377 of 2023
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NARIN MURLIDHAR LALWANI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS. SHIVANGI M RANA(7053) for the Applicant(s) No. 1
MR BHARGAV PANDYA, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 13/02/2025
ORAL ORDER
1. Though served, the respondent No.2 has not
appeared either in person or through an advocate.
2. The present application is filed by the applicant -
original complainant under Section 378(4) of the Code of
Criminal Procedure, 1973 (for short "Cr.P.C.") seeking leave to
file an appeal against the judgment and order dated 12.04.2023
passed by the learned 5th Additional Chief Judicial Magistrate,
Gandhidham - Kutch in Criminal Case No. 7542 of 2021,
whereby the original accused - respondent No. 2 herein came to
be acquitted from the charge levelled against him under Section
138 of the Negotiable Instruments Act, 1881 (hereinafter
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referred to as 'the 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.
3. The brief facts culled out from the memo of the
present application as well as the impugned judgment and order
are as under:
3.1 The applicant is working as a Karate Coach and came
in contact with the accused as the accused is having a
restaurant. On 06.04.2019 the accused demanded an amount of
Rs.1,50,000/- from the complainant for a period of 10 months
and the complainant gave the amount without any interest and
accused executed a promissory note in favour of the applicant.
After 10 months when the complainant demanded the amount of
Rs.1,50,000/- the accused issued cheque No. 00001 dated
15.02.2020 from his Account No. 50100020304911 with HDFC
Bank, Gandhidham Branch. The cheque was deposited by the
applicant in his Account No.174510100058828 on 15.02.2020
and the cheque returned unpaid with the endorsement
"Drawer's Sign Differs". The applicant gave the statutory
demand notice through his advocate on 03.03.2020 which was
refused by the accused, and the accused did not repay the
amount and hence the complainant filed the complaint before
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the court of the Chief Judicial Magistrate, Gandhidham -
Kachchh.
3.2 The accused was served with the summons and
appeared before the learned Trial Court and his plea was
recorded. The affidavit of examination in chief of the applicant
was taken on record but did not ensure that the documents
produced were proved and exhibited and thereafter the
applicant did not remain present for cross examination inspite of
innumerable opportunities and hence the stage of cross
examination of the applicant was closed. The learned Trial
Court considered the evidence of the applicant on record and
passed the impugned judgment and order and acquitted the
accused from the offence under Section 138 of the N.I.Act.
4. Being aggrieved and dissatisfied with the same, the
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.
5. Heard learned advocate Ms.Shivangi M. Rana
appearing for the applicant and learned APP Mr.Bhargav Pandya
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for the respondent - State. Though served the respondent No 2
has not appeared either in person or through an advocate.
6. Learned Advocate Ms.Shivangi Rana for the
appellant has submitted that the applicant was ready and willing
to lead his evidence but he was not made aware about the stage
of the matter, and his valuable right has been defeated. That the
cheque in question was issued for legally enforceable dues and
the presumption is in favour of the applicant until the same is
demolished by the accused, but the learned Trial Court has
passed the impugned judgement and order which is erroneous
and perverse and deserves to be quashed and set aside.
Learned Advocate urges this court to allow the application for
leave to appeal as the applicant has a good case on merits.
7. Learned APP Mr.Bhargav Pandya for the respondent
State has submitted that the learned Trial Court has considered
all the documents produced by the applicant and has also
considered the evidence and has passed the impugned order of
acquittal considering the settled principles of law and hence the
leave to appeal may not be granted.
8. On perusal of the impugned judgment and order and
the submissions of learned Advocate for the applicant it
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transpires that the applicant had filed the complaint on
07.09.2020 which came to be registered on 23.07.2021. The
applicant filed his affidavit of examination in chief at exhibit 6 on
02.09.2020 and has not remained present before the learned
Trial Court for cross examination or to prefer any applications
for adjournments. The cheque and other documents have not
been proved and exhibited. The stage of cross examination of
applicant was closed on 24.11.2021 and thereafter the applicant
did not remain present for reopening the stage of evidence, and
the matter was taken up for final arguments, but the applicant
or his advocate did not turn up and the impugned judgement and
order was passed on 12.04.2023. The learned Trial Court has
discussed the settled principles of law regarding non-adducing
of evidence on the basis of pleadings and has observed that the
applicant has not proved the case beyond reasonable doubt as
the cheque and the other documents have not been produced on
record. The applicant or his advocate has not remain present on
his behalf and the learned Trial Court has considered the
affidavit of examination in chief and the settled principles of law
and as there were no documents to support the case of the
applicant has passed the impugned judgement and order of
acquittal which is just and proper.
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9. Consequently, the present application seeking leave
to appeal under Section 378(4) of the Code of Criminal
Procedure fails and is hereby dismissed. Rule stands discharged.
10. Since the leave to prefer appeal is rejected, no order
is required to be passed in the Criminal Appeal, which is at filing
stage and the same stands disposed accordingly.
(S. V. PINTO,J)
F.S.KAZI
