Gujarat High Court
Nilesh Jagatnarayan Awasthi vs State Of Gujarat on 19 February, 2025
NEUTRAL CITATION
R/CR.MA/3590/2025 ORDER DATED: 19/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 3590 of
2025
In F/CRIMINAL APPEAL NO. 3423 of 2025
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NILESH JAGATNARAYAN AWASTHI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR AMIT R SHUKLA(13557) for the Applicant(s) No. 1
MR TARUN H RAWAT(13044) for the Applicant(s) No. 1
MS.JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 19/02/2025
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 appeal against the order dated 30.11.2024 passed
by the 34th Additional Chief Judicial Magistrate, Ahmedabad (hereinafter
referred to as the Trial Court) acquitting the respondent - accused in
Criminal Case No. 164028 of 2021 filed by the applicant for the offence
under Section 138 of the Negotiable Instrument Act, 1881. (hereinafter
referred to as the NI Act)
1.1 The respondent 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:-
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R/CR.MA/3590/2025 ORDER DATED: 19/02/2025
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2.1 The applicant, proprietor of Net Link System, had business
relations with respondent No.3, proprietor of respondent No.2 firm,
supplying Pepsi company products from time to time. An amount of Rs.
25,83,481/- was due for the period between 11/09/2021 to 23/09/2021, for
which invoices were issued. Respondent No.3 made part payments of Rs.
1,50,000/- on 27/09/2021 and Rs. 50,000/- on 06/09/2021, totaling Rs.
2,00,000/-, leaving an outstanding amount of Rs. 23,83,481/-. Towards
part payment, respondent No.3 issued two cheques--Cheque No. 000279
dated 20/09/2021 for Rs. 7,70,720/- drawn on The Kalupur Commercial
Co.Op. Bank Ltd., and Cheque No. 000021 dated 24/09/2021 for Rs.
6,00,000/- drawn on HDFC Bank Ltd. Both cheques were dishonored due
to "FUNDS INSUFFICIENT" as per the return memo dated 23/11/2021.
A legal notice was issued by the applicant's advocate on 01/12/2021, to
which respondent No.3 gave an evasive reply on 06/12/2021. The
accused did not reply to the notice nor made any payment and hence the
complaint filed the complaint in the Court of learned 39 th Additional
Chief Judicial Magistrate, Ahmedabad under Section 138 of the N.I.Act.,
which was registered as Criminal Case No. 164028 of 2021.
2.2 The accused was duly served with the summons and the accused
appeared and the plea of the accused was recorded at Exh. 3 and the
evidence of the applicant was taken on record. After the evidence of the
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R/CR.MA/3590/2025 ORDER DATED: 19/02/2025
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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
Magistrate, Ahmedabad was pleased to acquit the accused for the offence
of under Section 138 of the N.I.Act.
3. Heard learned advocate Mr. Tarun Rawat for the applicant and
learned Additional Public Prosecutor Ms. Jirga Jhaveri, for the respondent
State. Though served to the respondent-accused, none has 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.
4. Learned advocate Mr. Tarun Rawat submits that the applicant and
the accused had business transaction and the applicant was supplying
goods to the accused and invoices were issued. The accused had paid
some amount and when the accounts were settled, the amount of
Rs.25,83,481/-was outstanding, towards which, the cheques in question
were issued. The learned trial Court has not appreciated that the
applicant, in fact, has issued bills and paid GST and since it was
continuous transaction and the goods was supplied by the vehicle of the
applicant, there would not be any necessity of the transport bills.
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R/CR.MA/3590/2025 ORDER DATED: 19/02/2025
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5. Learned Additional Public Prosecutor, Ms. Jirga Jhaveri for the
respondent-State has submitted that learned trial Court and the learned
Sessions Judge has appreciated all the evidence in a different manner and
the issue requires consideration and hence appropriate orders may be
passed.
6. On perusal of the impugned judgment and order and the evidence
produced by the applicant on record, of the learned trial Court, it appears
that the learned trial Court has not appreciated the documents in proper
perspective and hence, leave to appeal is required to be granted and the
same is granted.
(S. V. PINTO,J)
VVM
