Gujarat High Court
Patel Jayeshbhai Kalidas vs Rabari Kanubhai Amrutbhai on 18 February, 2025
NEUTRAL CITATION
R/CR.MA/1088/2025 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. 1088 of
2025
In R/CRIMINAL APPEAL NO. 1913 of 2024
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PATEL JAYESHBHAI KALIDAS
Versus
RABARI KANUBHAI AMRUTBHAI & ANR.
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Appearance:
ADITYA A GUPTA(7875) for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 2
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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
30.04.2024 passed by the learned 4th Additional Sessions Judge, Mehsana
acquitting the respondent No. 1 - original accused in Criminal Appeal No.
382 of 2023 filed by the respondent No. 1 accused against the impugned
judgment and order dated 20.07.2023 passed by the learned Additional
Chief Judicial Magistrate, Vijapur (hereinafter referred to as the learend
Trial Court) in Criminal Case No. 490 of 2016 convicting and sentencing
him for a period of six months for the offence under Section 138 of the
NEUTRAL CITATION
R/CR.MA/1088/2025 ORDER DATED: 18/02/2025
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Negotiable Instrument Act, 1881. (hereinafter referred to as the "NI,
Act").
1.1 The respondent No. 1 is hereinafter referred to as " the accused" as
he stood in the original 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 was known to the accused and the accused required
some financial assistance for his business and the applicant had given an
amount of Rs.23,00,000/- to the accused. The accused issued Cheque No.
538266 dated 04.02.2013 for Rs. 23,00,000/- from his account with the
South Indian Bank Limited and the cheque was deposited by the
applicant in his account with Bank Of India, Vijapur Branch, but the
cheque returned unpaid with an endorsement " Account Closed" on
06.02.2013. The applicant gave the demand statutory notice through
RPAD on 26.02.2013, which was duly served to the accused on
12.03.2013 but the accused did not pay the amount and hence the
applicant filed the complaint under Section 138 of the Negotiable
Instruments Act, 1881 before the Court of the Additional Chief Judicial
Magistrate, Vijapur, which was registered as Criminal Case No. 490 of
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R/CR.MA/1088/2025 ORDER DATED: 18/02/2025
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2016.
2.2 The accused was duly served with the summons and the accused
appeared and the plea of the accused was recorded at Exh. 6 and the
evidence of 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 Procedure, 1973 was recorded and after
hearing the arguments of both the learned advocates, the learned
Additional Chief Judicial Magistrate, Vijapur was pleased to convict the
accused and sentence him to simple imprisonment for six months for the
offence of under Section 138 of the N.I.Act. The learned trial Court was
pleased to order that the accused pay an amount of Rs.23,00,000/- as
compensation to the applicant.
3. Being aggrieved and dissatisfied with the impugned judgment and
order of conviction, the accused filed Criminal Appeal No. 387 of 2023
before the learned Sessions Court, Mehsana and after the arguments of
learned advocates for both the parties were heard, the learned 4 th
Additional Sessions Judge, Mehsana was pleased to allow the appeal and
set aside the judgment and order passed by the learned Additional Chief
Judicial Magistrate, Vijarapur in Criminal Case No. 490 of 2016, on
20.03.2023.
4. Being aggrieved and dissatisfied with the order of learned 4th
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R/CR.MA/1088/2025 ORDER DATED: 18/02/2025
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Additional Sessions Judge, Mehsana, the applicant has preferred the
present application seeking leave to appeal mainly stating that, the
evidence is not being properly appreciated by the learned Sessions Judge
and the applicant has a good case on merits and hence leave to appeal
must be granted.
5. Heard learned advocate Mr. Aditya A Gupta for the applicant and
learned Additional Public Prosecutor Mr. Bharga Pandya, for the
respondent State. Though served, the respondent No.1 has not appeared
either in person or through an advocate. Perused the judgment and order
passed by the learned trial Court as well as the judgment and order passed
by the learned Sessions Court.
6. Learned advocate Mr. Aditya Gupta for the applicant has reiterated
the contents of the application and has submitted that the learned trial
Court had properly appreciated the evidence and had convicted the
applicant but the learned Sessions Judge, Mehsana has not considered the
evidence in proper perspective. The applicant had proved that the amount
was given and considering the evidence, the applicant has good case on
merits, 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 and the learned
Sessions Judge has appreciated all the evidence in a different manner and
NEUTRAL CITATION
R/CR.MA/1088/2025 ORDER DATED: 18/02/2025
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the issue requires consideration and hence appropriate orders may be
passed.
8. On perusal of the judgments and orders of the learned trial Court as
well as learned 4th Additional Sessions Judge, Mehsana, the same
evidence has been appreciated by both the learned Courts in a different
manner. The learned Sessions Judge has considered that the learned Trial
Court has not considered the defense of the accused that the cheque was
not issued in discharge of legally enforceable debt and the facts have not
been properly appreciated. 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
