Gujarat High Court
Jitendrabhai Dhansukhbhai Pathak vs State Of Gujarat on 28 February, 2025
NEUTRAL CITATION
R/CR.MA/610/2025 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. 610 of
2025
In F/CRIMINAL APPEAL NO. 944 of 2025
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JITENDRABHAI DHANSUKHBHAI PATHAK
Versus
STATE OF GUJARAT & ANR.
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Appearance:
SIDDHARTH R KHESKANI(9483) 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 24.07.2024 passed by learned Judicial
Magistrate First Class, Liliya (hereinafter referred to as "the trial Court")
in Criminal Case No. 435 of 2024, whereby the original accused -
respondent No. 2 herein came to be acquitted from the charge leveled
against him under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as 'the NI Act").
NEUTRAL CITATION
R/CR.MA/610/2025 ORDER DATED: 28/02/2025
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1.1 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.
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 That the applicant is the service Manager of Shri Krishna Credit
Co-Operative Society Limited and the respondent No. 2 is the member of
the Credit Cooperative Society bearing Membership No.560. The
respondent No. 2 had taken a loan of Rs.1,50,000/- and the amount of
Rs.3,09,711/- was outstanding, towards which, the cheque No. "100018"
of Amreli Jilla Madhyastha Sahakari Bank Ltd., Liliya was issued to the
applicant. The cheque was deposited by the applicant, which returned
unpaid on 05.06.2024 and a demand statutory notice was issued to the
accused on 18.06.2024, which was duly served to the accused on
19.06.2024 but the accused did not reply to the demand notice nor made
any payment of the cheque and hence the complaint under Section 138 of
the NI was filed before before the Court of learned Judicial Magistrate,
First Class, Liliya, which was registered as Criminal Case No. 435 of
2024.
NEUTRAL CITATION
R/CR.MA/610/2025 ORDER DATED: 28/02/2025
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2.2 The accused was served with the summons and appeared before the
learned Trial Court and after recording of the plea of the accused, the
evidence of the applicant was taken on record 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 denied
the averments of the evidences against him. After the arguments of the
learned advocates for both the parties were heard, by the impugned
judgment and order, the learned Trial Court acquitted the accused from
the offence under Section 138 of the NI 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. S.R.Kheskani appearing for the
applicant and learned APP Mr. Bhargav Pandya for the respondent -
State.
5. Learned Advocate Mr. S.R.Kheskani for the applicant submits that
the applicant had produced all the documentary evidence to prove that the
accused was a member of the Bank and had taken the loan and all the
NEUTRAL CITATION
R/CR.MA/610/2025 ORDER DATED: 28/02/2025
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documents were produced but the learned Trial Court has not appreciated
the same in proper perspective. That, merely on the basis of conjectures
and presumptions, the learned Trial Court has concluded that there was
no legally enforceable debt but in fact the documents including the
statement of the accounts, promissory note and resolutions clearly prove
that the loan was taken by the accused and the same had remained unpaid
towards which the cheque in question was issued. Learned advocate for
the applicant submits that the learned trial Court has not appreciated the
provisions of Sections 118 and 139 of the NI Act in proper perspective
and the applicant has a good case on merits and hence, the application
seeking leave to appeal must be granted.
6. Learned APP Mr Bhargav Pandya 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. On perusal of the impugned judgment and order and the
submission of the learned advocate for the applicant, it appears that the
applicant, who is Service Manager of Shri Krishna Credit Cooperative
Society Limited, has produced all the documents relating to the loan
taken by the accused, including statement of the account and the
NEUTRAL CITATION
R/CR.MA/610/2025 ORDER DATED: 28/02/2025
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documents have not been appreciated by the learned trial Court in true
perspective. The application seeking leave to appeal demands
consideration and consequently the same is allowed.
(S. V. PINTO,J)
VVM
