Gujarat High Court
Mahammadashik Mahmadisadik Pathan vs State Of Gujarat on 31 July, 2025
NEUTRAL CITATION
R/CR.MA/913/2024 ORDER DATED: 31/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 913 of 2024
(FOR LEAVE TO APPEAL)
In F/CRIMINAL APPEAL NO. 18316 of 2023
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MAHAMMADASHIK MAHMADISADIK PATHAN
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR LOGANATHAN DURAI(5948) for the Applicant(s) No. 1
PRATEEK S BHATIA(8629) for the Respondent(s) No. 2
MR PRANAV DHAGAT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 31/07/2025
ORAL ORDER
1. When the matter is called out, learned advocate Mr.
Prateek S. Bhatia for the respondent no. 2 is not present.
2. The present application is filed by the applicant -
original complainant seeking leave to file an appeal against the
judgment and order passed by the learned Chief Judicial
Magistrate, Rajpipla (hereinafter referred to as the "learned Trial
Court") in Criminal Case No.1301 of 2018 on 18.03.2023, whereby,
the learned Trial Court was pleased to acquit the accused from the
offence under Section 138 of Negotiable Instrument Act, 1881
(hereinafter referred to "the N.I.Act" for short).
NEUTRAL CITATION
R/CR.MA/913/2024 ORDER DATED: 31/07/2025
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3. Heard learned advocate Mr. Loganathan Durai for the
applicant and learned APP Mr. Pranav Dhagat for the respondent
State.
4. Learned advocate Mr. Durai for the applicant submits
that the applicant and the respondent no. 2 are friends and known
to each other and the respondent no. 2 used to take hand loan of
various amount from the applicant. An amount of Rs.1,16,000/-
was outstanding, towards which, the respondent no. 2 issued
cheque No.000004 dated 30.06.2018 for an amount of Rs.1,16,000/-
from his account with Bank of Baroda, Rajpipla Branch. The
cheque was deposited by the applicant in his account with Bank of
India, Rajpipla Branch, but the cheque returned unpaid with the
endorsement "Funds Insufficient". The demand statutory notice
was given which was duly served to the respondent no. 2 but the
respondent no. 2 did not pay the amount within the stipulated
period, and hence, the applicant filed the complaint under Section
138 of the N.I.Act before the Court of Chief Judicial Magistrate,
Rajpipla, which came to be registered as Criminal Case No. 1301 of
2018. The respondent no. 2 was duly served with the summons
NEUTRAL CITATION
R/CR.MA/913/2024 ORDER DATED: 31/07/2025
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and he appeared before the learned Trial Court and after his plea
was recorded, the applicant produced the oral and documentary
evidence on record. Learned advocate submits that during the
cross-examination, the applicant could not rebut the presumption.
After the closing pursis was filed by the applicant, the respondent
no. 2, in his further statement recorded under Section 313 of
Cr.P.C., 1973, admitted that the applicant is his friend and he
would often borrow certain amount from the applicant and the
cheque was given towards security but has not stated the exact
amount that was taken as hand loan. Learned advocate submits
that the applicant filed an application at the Narmada Police
Station, wherein, he had admitted that he had taken certain
amounts from the applicant and the applicant has proved by oral
as well as documentary evidence that the loan amount was taken,
which was not repaid and the cheque in question was given
towards the outstanding amount but the learned Trial Court has
not appreciated the evidence in proper perspective. Learned
advocate submits that the applicant has a good case on merits and
the application seeking leave to appeal must be granted.
NEUTRAL CITATION
R/CR.MA/913/2024 ORDER DATED: 31/07/2025
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5. Learned APP Mr. Pranav Dhagat for the respondent
State has submitted that the learned Trial Court has considered all
the documents produced by the applicant and has also considered
the evidence and has passed the impugned order of acquittal
considering the settled principles of law and hence, the leave to
appeal may not be granted.
6. Considering the submissions of learned advocate for
the applicant as also on perusal of the paper book on record and
the judgment and order of acquittal, prima facie, it appears that
the documents have not been properly appreciated in proper
perspective. In the peculiar facts and circumstances of the case in
the considered opinion of this Court the application deserves to be
considered. Consequently, the application seeking leave to appeal
is granted and disposed off accordingly.
(S. V. PINTO,J)
F.S. KAZI
