Gujarat High Court
Bhaveshkumar Jamnadas Kakkad vs Vijaybhai Rameshchandra Kansara on 3 July, 2025
NEUTRAL CITATION
R/CR.MA/6707/2025 ORDER DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6707 of 2025
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 10560 of 2025
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BHAVESHKUMAR JAMNADAS KAKKAD
Versus
VIJAYBHAI RAMESHCHANDRA KANSARA & ANR.
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Appearance:
KANAN R JADEJA(8999) for the Applicant(s) No. 1
MS VIBHUTI K JADEJA(14009) for the Applicant(s) No. 1
MS.C.M.SHAH, APP for the Respondent(s) No. 2
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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 03.02.2025 passed by the learned 2nd Additional Chief
Judicial Magistrate, Porbandar (hereinafter referred to as the
"learned Trial Court") in Criminal Case No. 52 of 2020, whereby,
respondent No.1 - original accused came to be acquitted from the
offence under Section 138 of Negotiable Instrument Act, 1881
(hereinafter referred to as "N.I.Act").
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R/CR.MA/6707/2025 ORDER DATED: 03/07/2025
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2. Heard learned advocate Mr.Hari Brahmbhatt for
Kanan Jadeja for the applicant and learned APP Ms.C.M.Shah for
the respondent No.1 - State.
3. Learned advocate Mr.Hari Bhrahmbhatt for the
applicant submits that the respondent no. 1 was in need for
finance, and on his request, the applicant had deposited an
amount of Rs.1,50,000/- on 13.02.2019 and an amount of
Rs.2,00,000/- on 16.02.2019 by NEFT in the account of the
respondent no. 1 and gave an amount of Rs.3,70,000/- in cash. The
respondent no. 1 required the amount for investing in his business
of travels, and in all, the applicant had advanced an amount of
Rs.7,20,000/- to the respondent no. 1. When the amount was
demanded back, the respondent no. 1 issued issued cheque No.
444315 dated 25.11.2019 for Rs.7,20,000/- from his account with
Indian bank, Adajan Branch, Surat. The applicant deposited the
said cheque in his account with Central Bank of India, Madhavpur
(Ghed) Branch, but the cheque returned unpaid with the
endorsement "Funds Insufficient". The demand statutory notice
NEUTRAL CITATION
R/CR.MA/6707/2025 ORDER DATED: 03/07/2025
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was given, which was duly served to the respondent no. 1 but the
respondent no. 1 did not give any reply and did not repay the
amount within the stipulated time, and hence, the applicant filed
the complaint under Section 138 of N.I.Act before the Court of
Chief Judicial Magistrate, Porbandar, which came to be registered
as Criminal Case No. 52 of 2020. After the respondent no.1 was
duly served with the summons, he appeared before the learned
Trial Court and after his plea was recorded, the applicant
produced oral and documentary evidence in support of his case.
Learned advocate for the applicant submits that during the cross-
examination of the applicant, the repsondent no. 1 did not rebut
the presumption, and in fact, there was an application was filed by
the respondent no. 1 to the Adajan Police Station regarding the
amount that was loaned to him by the brother of the applicant,
which was brought on record during the cross-examination. It was
the defence of the respondent no. 1 that the amount was paid into
the account of the applicant on 17.06.2019, 23.09.2019 and
24.09.2019 but no such documentary evidence was produced on
record. The respondent no. 1 did not step into the witness box and
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R/CR.MA/6707/2025 ORDER DATED: 03/07/2025
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did not produce any documentary evidences even to rebut the
presumption or raise a plausible defence and except for the bare
denial, no evidence was produced . Learned advocate submits that
learned Trial Court has not appreciated the evidence on record in
proper perspective and by the impugned judgment and order, was
pleased to acquit the respondent no.1 from the offence under
Section 138 of the N.I.Act. Learned advocate further submits that
the applicant has a good case on merits, and hence, has urged this
Court to allow the present application.
4. Learned APP Ms.C.M.Shah 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 passed the impugned order of acquittal considering
the settled principles of law and hence, the leave to appeal may
not be granted.
5. Considering the submissions of learned advocate for
the applicant as also perusal of the paper book available on record,
prima facie, it appears that the learned Trial Court has failed to
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R/CR.MA/6707/2025 ORDER DATED: 03/07/2025
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appreciate the entire evidence in proper perspective, and hence, in
the peculiar facts and circumstances of the case and in the
considered opinion of this Court, the application deserves to be
considered. Consequently, the application for leave to appeal is
granted and disposed off accordingly.
(S. V. PINTO,J)
F.S. KAZI
