Gujarat High Court
Haji Yusuf Sidiqui Shaikh vs State Of Gujarat on 28 February, 2025
NEUTRAL CITATION
R/CR.MA/4161/2025 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. 4161 of
2025
In F/CRIMINAL APPEAL NO. 1050 of 2025
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HAJI YUSUF SIDIQUI SHAIKH
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR PR ABICHANDANI(102) 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 419(4) of the Bharatiya Nagrik Suraksha
Sanhita, 2023 (for short "BNSS") seeking leave to file an appeal against
the order dated 20.05.2024 passed by the learned Additional Chief
Judicial Magistrate, Vadodara (hereinafter referred to as the "learned
Trial Court") in Criminal Case No. 28701 of 2021, whereby the learned
Trial Court has dismissed the Criminal Case for want of prosecution as
the applicant did not remain present under the provisions of Section
256(3) of Cr.P.C. and the respondent No. 2 to 4 - original accused came
to be acquitted from the offence under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as 'the NI Act").
NEUTRAL CITATION
R/CR.MA/4161/2025 ORDER DATED: 28/02/2025
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1.1 The respondent Nos. 2 to 4 are hereinafter referred to as "the
accused" as they 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 record and proceedings are as under:
2.1 The applicant and the accused were contesting one Civil Suit being
Special Civil Suit No. 115 of 2018 and a compromise was arrived at
where in the accused issued a cheque No. 000084 for Rs.15,00,000/-
dated 30.04.2021 of the account with HDFC Bank. The Cheque was
deposited in the bank of the applicant which was returned unpaid with the
endorsement "Payment Stopped by Drawer". The applicant gave the
statutory demand notice on 16.06.2021 which was duly served to the
accused on 17.06.2021 but no reply was given and no payment was made
hence the applicant filed the complaint under Section 138 of the N I Act
before the Chief Judicial Magistrate, Vadodara which was registered as
Criminal Case No. 2870 of 2021.
2.2 The learned Additional Chief Judicial Magistrate, Vadodara was
pleased to consider the affidavit, documents produced and the
examination in chief of the applicant produced at exhibit 4 and took
cognizance for the offence under Section 138 of the N I Act and issued
summons to the accused.
NEUTRAL CITATION
R/CR.MA/4161/2025 ORDER DATED: 28/02/2025
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2.3 The accused was duly served with the summons and appeared
before the learned Trial Court and the plea of the accused was recorded at
exhibit 08. The matter was pending for cross examination of the applicant
but by an order dated 20.05.2021, the learned Additional Chief Judicial
Magistrate was pleased to pass an order under Section 256 of The Code
of Criminal Procedure and dismissed the complaint.
3. Being aggrieved and dissatisfied by the impugned order the
applicant has preferred present leave to file an appeal under Section
419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023.
4. Heard learned advocate Mr. P. R. Abhichandani appearing for the
applicant and learned APP Mr. Bhargav Pandya for the respondent -
State.
5. Learned advocate Mr. P. R. Abhichandani for the applicant has
submitted that the learned Trial Court has failed to appreciate the facts
and provisions of law in proper perspective and therefore the impugned
judgment is unsustainable and bad in law. Learned advocate further
submits that due to a bonafide mistake, the advocate of the applicant did
not remain present on the date of passing of the impugned order and
therefore, the same may be quashed and set aside.
6. Learned APP Mr. Bhargav Pandya for the respondent -state has
submitted that after recording the absence of learned advocate for the
NEUTRAL CITATION
R/CR.MA/4161/2025 ORDER DATED: 28/02/2025
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applicant the learned Trial Court has passed the impugned order under
Section 256 of the Cr.P.C. and hence, this Court may not interfere with
the impugned order and have urged this Court to dismiss the present
application.
7. Considering the submissions of learned advocate for the applicant
and also the impugned order and documents produced by the learned
advocate for the applicant on record it appears that the affidavit of
examination in chief of the applicant was produced on record at exhibit 4
and the learned Trial Court has not considered the affidavit of
examination in Chief and other documents and has passed the impugned
order under Section 256 of the Code of Criminal Procedure. It clearly
transpires that the learned Trial Court has not appreciated the entire
evidence on record in proper perspective and the application seeking
leave to appeal requires consideration, and consequently, the same is
allowed.
(S. V. PINTO,J)
VVM
