Gujarat High Court
Bharatbhai Vinubhai Pansheriya vs State Of Gujarat on 28 February, 2025
NEUTRAL CITATION
R/CR.MA/235/2025 ORDER DATED: 28/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 235 of
2025
In F/CRIMINAL APPEAL NO. 64 of 2025
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BHARATBHAI VINUBHAI PANSHERIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR NIRAV C SANGHAVI(5950) for the Applicant(s) No. 1
MR. BHARGAV PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 28/02/2025
ORAL ORDER
1. The present application is filed by the applicant - original
complainant under Section 378(4) of the Code of Criminal Procedure,
1973 (for short "Cr.P.C.") seeking leave to file an appeal against the
judgment and order dated 17.12.2024 passed by the learned 9th Additional
Judicial Magistrate First Class, Junagadh (hereinafter referred to as the
"learned Trial Court") in Criminal Case No. 3805 of 2020, whereby the
respondent No. 2 - original accused came to be acquitted from the offence
under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter
referred to as 'the N I Act").
1.1 The parties are hereinafter referred to as "the complainant" and
"the accused" as they stood in the original case for the sake of
convenience, clarity and brevity.
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R/CR.MA/235/2025 ORDER DATED: 28/02/2025
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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 complainant filed a complaint against the accused under
Section 138 of the Act, mainly contending that the husband of the
accused had taken a friendly loan of amount of Rs.3,00,000/- for personal
need in cash and the accused had issued cheque No.440221 for the
amount of ₹3,00,000/- dated 06.11.2020 from the account of the accused
with The Junagadh Commercial Cooperative Bank Ltd., Dolatpara
Branch, Junagadh. The complainant deposited the cheque on 05.10.2018
in his Bank of Baroda, Junagadh Branch and the cheque was dishonored
and the reason mentioned in the return memo dated 09.11.2020 was
"Funds Insufficient". The complainant sent the statutory demand notice to
the accused on 12.11.2020 which was duly served on 23.11.2020 against
which an evasive reply was given and no payment was made and hence
the complainant filed a criminal complaint before the Court of the
Additional Judicial Magistrate First Class, Junagadh under Section 138 of
the N I Act, 1881 which was registered as Criminal Case No. 3805 of
2020.
2.2 The accused was served with the summons and appeared before the
learned Trial Court and her plea was recorded at Exhibit 10 and the
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R/CR.MA/235/2025 ORDER DATED: 28/02/2025
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evidence of the complainant was taken on record. The complainant was
examined on oath and 08 documentary evidences were produced in
support of his case and after the closing pursis was filed, the further
statement of the accused under Section 313 of the Code of Criminal
Procedure was recorded, wherein the accused stated that the facts
mentioned in examination in chief and in the complaint are false. The
accused refused to step into the witness box but produced 14
documentary evidence in her defence and after the evidence of the
accused was closed the arguments of the learned advocates for both the
parties were heard and by the impugned judgment and order, the learned
Trial Court acquitted the accused from the offence under Section 138 of
the N I Act.
3. 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.
4. Heard learned advocate Mr. Nirav C. Sanghavi appearing for the
applicant, learned APP Mr. Bhargav Pandya for the respondent - State.
5. Learned Advocate Mr. Nirav C. Sanghavi for the applicant submits
that the learned Trial Court has not appreciated that the applicant has
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R/CR.MA/235/2025 ORDER DATED: 28/02/2025
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successfully established that the cheque in question was issued by the
accused from the bank account maintained by her. The original
complainant has proved that the cheque was written by the accused and it
was dishonoured and as the original complainant is the holder in due
course of the cheque in question the statutory presumption under Section
139 of the N I Act is to be drawn in favour of the original complainant.
The learned Trial Court has not appreciated the provisions of Section 118
and 138 of the N I Act in proper perspective. The oral contract is not
negated by the accused and the fact of the amount paid by the original
complainant to the accused is also not negated, but the learned Trial
Court has disbelieved the same. The accused had failed to rebut the
presumption and hence the judgement and order of acquittal is bad in law
and the leave to appeal must be granted.
6. Learned APP Mr. Bhargav Pandya for the respondent - State has
submitted that the learned Trial Court has appreciated all the evidence in
detail in light of the citations referred to in the judgement and has passed
the impugned judgement and order of acquittal which is proper and no
interference is required and hence the application for leave to appeal must
be rejected.
7. Considering the submissions of learned advocate for the applicant
as also the impugned judgement and order and the documents produced
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R/CR.MA/235/2025 ORDER DATED: 28/02/2025
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by the applicant in the original case at Exh. 53 the financial capacity of
the applicant has been challenged, but the documentary evidence
produced by the applicant have not been appreciated by the learned Trial
Court in proper perspective and the application seeking leave to appeal
requires consideration and consequently, the same is allowed.
(S. V. PINTO,J)
VVM
