Gujarat High Court
Mukeshbhai Mafatlal Patel vs State Of Gujarat on 3 July, 2025
NEUTRAL CITATION
R/CR.MA/9897/2024 ORDER DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 9897 of
2024
In F/CRIMINAL APPEAL NO. 36369 of 2023
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MUKESHBHAI MAFATLAL PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR JIGAR L PATEL(11596) for the Applicant(s) No. 1
MR AFTABHUSEN ANSARI(5320) for the Respondent(s) No. 2
MS. CHETNA SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 03/07/2025
ORAL ORDER
1. The present application is filed by the applicant - original
complainant seeking leave to file an appeal against the order dated
22.06.2023 passed by the Court of learned 5th Sessions Judge, Surat
(hereinafter referred to as the "learned Trial Court") in Criminal Appeal
No. 68 of 2022, whereby, the learned trial Court has acquitted the
respondents - accused from the offence under Section 138 of the
Negotiable Instrument Act, 1881 (hereinafter referred to as the "
N.I.Act").
2. Heard learned advocate Mr. Jigar L. Patel appearing for the
applicant, learned APP Ms. Chetna Shah for the respondent No.1- State
and learned advocate Ms.Helly Makwana for learned advocate Mr.
Aftabhusen Ansari appearing for the respondent No.2.
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R/CR.MA/9897/2024 ORDER DATED: 03/07/2025
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3. Learned advocate Mr. Jigar L. Patel for the applicant submits that
the applicant is doing the business of cloth in the name and style of
Ganpati Textile and the respondent No. 2 was known to the applicant and
was in need of Rs.20,00,000/- and the applicant had advanced an amount
of Rs.20,00,000/-. The respondent No. 2 had executed the promissory
note on 19.11.2018 and had issued Cheque No. "177880" dated
26.06.2019 for the amount of Rs.20,00,000/- from his account with Sutex
Co.Op.Bank Ltd., Salabatpura Branch, Surat. The cheque was deposited
by the applicant in his account with Prime Co.Op.Bank. Ltd, Pandesara
Branch, Surat but the cheque returned unpaid with the endorsement
"Funds Insufficient". The demand statutory notice was given, which was
duly served to the respondents but the respondent No. 2 did not repay the
amount within the stipulated period, and hence, the applicant has filed the
criminal complaint under Section 138 of the NI Act before the Court of
the Chief Judicial Magistrate, Surat, which came to be registered as
Criminal Case No. 42586 of 2019. After the respondent No. 2 was duly
served with the summons, his plea was recorded and the applicant
stepped into the witness box and deposed on oath and also examined two
witnesses and produced eighteen documentary evidences to support of his
case. After the closing pursis was filed, the further statement of the
respondent No. 2 under Section 313 of the Code of Criminal Procedure,
NEUTRAL CITATION
R/CR.MA/9897/2024 ORDER DATED: 03/07/2025
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1973 was recorded and after the hearing arguments of the learned
advocates for the respective parties were heard, learned trial Court, by
judgment and order dated 21.01.2022, was pleased to convict the
respondent No. 2 for the offence under Section 138 of the NI Act and
sentenced the respondent No. 2 to simple imprisonment for eighteen
months. The learned trial court was also pleased to order to pay an
amount of Rs.40,00,000/- as compensation to the applicant under Section
357(3) of the Code of Criminal Procedure, 1973. Being aggrieved and
dissatisfied by the judgment and order of conviction, the respondent No.
2 filed an appeal being Criminal Appeal No. 68 of 2022 before the Court
of Sessions Judge, Surat and by the impugned judgment and order, the
learned 5th Additional Sessions Judge, Surat was pleased to allow the
appeal and quashed and set aside the judgment and order of conviction.
Learned advocate for applicant submits that the applicant had proved the
legally enforceable due by documentary and oral evidence and has also
examined two witnesses in support of his case and all the evidences was
properly appreciated by the learned trial Court. During the cross
examination, the respondent No. 2 could not rebut the presumption and
even through the offence was proved, the learned Sessions Judge did not
appreciate the same in proper perspective. Learned advocate for the
applicant submits that the applicant has a good case on merits and the
NEUTRAL CITATION
R/CR.MA/9897/2024 ORDER DATED: 03/07/2025
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application seeking leave to appeal must be granted.
4. Learned APP Ms. Chetna Shah for the respondent No. 1 - State and
learned advocate Ms. Helly Makwana have jointly submitted that learned
Sessions Judge, Surat has appreciated all the evidence in proper
perspective and no interference is required in the impugned judgment and
order passed by the learned Sessions Court and hence the application
seeking leave to appeal must be rejected.
5. Considering the submissions advanced by the learned advocate for
the applicant as also on perusal of the impugned judgment and order
passed by the learned Sessions Judge, Surat and the judgment and order
of conviction passed by the learned trial Court prima-facie, it appears that
the same set of evidence have been appreciated by two Courts in a
different manner and hence, the issue requires consideration. Hence, the
application seeking leave to appeal deserves consideration. Consequently,
the same is allowed.
(S. V. PINTO,J)
VVM
