Gujarat High Court
Dhanesh Devchandbhai Shah vs State Of Gujarat on 18 February, 2025
NEUTRAL CITATION
R/CR.MA/1233/2025 ORDER DATED: 18/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 1233 of
2025
In F/CRIMINAL APPEAL NO. 49719 of 2024
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DHANESH DEVCHANDBHAI SHAH
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DHARMESH V SHAH(1050) for the Applicant(s) No. 1
MS DRASHTI D SHAH(11443) for the Applicant(s) No. 1
MR KRUNAL A AGRAWAL(12812) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 3
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 18/02/2025
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 appeal against the
order dated 12.06.2024 passed by the learned Additional Chief
Metropolitan Magistrate, Court No. 28, Ahmedabad (hereinafter referred
to as the learned Trial Court)in Criminal Case No. 4313 of 2022 ,
whereby the respondent Nos.2 and 3 - original accused have been
acquitted for the offence under Section 138 of the Negotiable Instrument
Act, 1881. (hereinafter referred to as the "NI, Act").
1.1 The respondent Nos. 2 and 3 - original accused are hereinafter
referred to as " the accused" as they stood in the rank and file of original
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R/CR.MA/1233/2025 ORDER DATED: 18/02/2025
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case for the sake of convenience, clarity and brevity.
2. The brief facts culled out from the memo of the present appeal as
well as the record and proceedings are as under:-
2.1 The applicant is doing the business of Travels and owned luxury
Bus No. GJ-01-AY-9945, Engine No. 797-TC-55-DTZ-118833 and
Chesis No. 359277-DTC-005861. The accused wanted the bus for his
business and decided to purchase the same for an amount of Rs.5,11,000/-
and a notarized agreement was executed on 24/09/2021 and the
possession of the luxury bus was handed over on 05/01/2020. That some
amount was paid and Cheque Nos. "729271" dated 18.01.2021 for
Rs.1,50,000/- and Cheque Nos. "729272" dated 30.11.2021 for
Rs.15,50,000/- both from the account of the accused with State Bank of
India, Ramakaka Temple Road Branch, Vadodara were deposited by the
complainant in his account and both the cheques returned unpaid with the
endorsement "Today's opening balance Insufficient". The applicant gave
the demand statutory notice on 10.12.2021 to the accused, which was
duly served to the accused but the accused did not pay the amount and
hence the applicant filed the complaint under Section 138 of the NI Act,
before the Court of the Chief Metropolitan Magistrate, Ahmedabad.
2.2 The accused was duly served with the summons and the accused
appeared and the plea of the accused was recorded and the evidence of
NEUTRAL CITATION
R/CR.MA/1233/2025 ORDER DATED: 18/02/2025
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the applicant was taken on record. After the evidence of the applicant was
closed, the further statement of the accused under Section 313 of the
Code of Criminal Procedue, 1973 was recorded and after hearing the
arguments of both the learned advocates, the learned Trial Court was
pleased to acquit the accused for the offence under Section 138 of the
N.I.Act.
3. Being aggrieved and dissatisfied with the judgment and order of
learned Chief Metropolitan Magistrate, Ahmedabad, the applicant has
preferred the present application seeking leave to appeal mainly stating
that, the evidence is not properly appreciated by the learned trial Court
and the applicant has good case on merits and hence leave to appeal must
be granted.
4. Heard learned advocate Mr. Darshit Shah for the applicant and
learned Additional Public Prosecutor Mr. Bharga Pandya, for the
respondent State. Though served, the respondents have not appeared
either in person or through an advocate. Perused the judgment and order
passed by the learned Courts.
5. Learned advocate Mr. Darshit Shah for the applicant has reiterated
the contents of the application and has submitted that the the applicant
had produced all the documents including the agreement executing
between the parties to prove that the cheques were issued for a legally
NEUTRAL CITATION
R/CR.MA/1233/2025 ORDER DATED: 18/02/2025
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enforceable debt but the learned trial Court has not considered the same
and hence and hence, leave to appeal must be granted.
7. Learned Additional Public Prosecutor, Mr. Bhargav Pandya for the
respondent-State has submitted that the learned trial Court has
appreciated all the evidence in proper perspective and no interference is
required hence the application must be rejected.
8. On perusal of the judgments and orders of the learned trial Court
and documents produced by the learned advocate in the form of paper
book, it appears that the transaction for the luxury bus was between the
parties and the notarized agreement was executed between the parties.
The application has produced the transfer form of the vehicles and prima
facie it appears that the learned advocate has not appreciated the
documents in proper perspective. In view of the above, the issue requires
consideration and the leave to appeal is required to be granted.
9. Consequently, the present application seeking leave to appeal is
granted.
(S. V. PINTO,J)
VVM
