Gujarat High Court
Shaileshbhai Govindbhai Gondaliya vs State Of Gujarat on 3 July, 2025
NEUTRAL CITATION
R/CR.MA/7877/2025 ORDER DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 7877 of 2025
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 14105 of 2025
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SHAILESHBHAI GOVINDBHAI GONDALIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
DHRUVIK K PATEL(7769) for the Applicant(s) No. 1
MS.C.M.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 under Section 419(4) of the Bharatiya Nagrik
Suraksha Sanhita, 2023 (for short "BNSS") seeking leave to file an
appeal against the judgment and order dated 05.03.2025 passed by
the learned Judicial Magistrate First Class, Rajkot (hereinafter
referred to as the "learned Trial Court") in Criminal Case No.
17856 of 2021, whereby the respondent No. 2 - original accused
came to be acquitted from the offence under Section 138 of the
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R/CR.MA/7877/2025 ORDER DATED: 03/07/2025
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Negotiable Instruments Act, 1881 (hereinafter referred to as 'the
N.I.Act").
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 The applicant filed a complaint against the accused
under Section 138 of the Act, as the accused had taken a hand loan
of Rs.16,00,000/- in parts from the applicant and the accused had
issued cheque No.000112 for the amount of Rs.16,00,000/- dated
08.04.2021 from his account with Bank of Baroda, Bedipara, Rajkot
Branch. The applicant deposited cheque in his account with The
State Bank of India, Mavdi Plot, Ring Road, Rajkot Branch and the
cheque was dishonored on 09.04.2021 and the reason mentioned in
the return memo was "Account Blocked". The applicant sent the
statutory demand notice to the accused on 13.04.2021 which was
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R/CR.MA/7877/2025 ORDER DATED: 03/07/2025
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returned unserved and no payment was made. The applicant filed
the criminal complaint before the Court of the Judicial Magistrate
First Class, Rajkot under Section 138 of the N I Act, 1881 which
was registered as Criminal Case No. 17856 of 2021.
2.2 The accused was served with the summons and the
accused appeared before the learned Trial Court and his plea was
recorded at exhibit 06 and the entire evidence of the applicant was
taken on record. The applicant was examined on oath and 08
documentary evidences were produced in support of his case 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 stated that he has not issued any
cheque in favor of the applicant and a false complaint has been
filed. The accused stepped into the witness box and was examined
on oath at exhibit 60 and the accused examined four witness on
oath and produced 01 documentary evidence in his defence. 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
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R/CR.MA/7877/2025 ORDER DATED: 03/07/2025
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the N.I.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. Dhruvik K. Patel for the
applicant, learned APP Ms. C. M. Shah for the respondent - State.
5. Learned Advocate Mr. Dhruvik K. Patel for the
applicant submits that the learned Trial Court has not appreciated
that the applicant has successfully established that the cheque in
question was issued by the accused from the bank account
maintained by him. The applicant has proved that the cheque was
written by the accused and it was dishonoured and as the
applicant is the holder in due course of the cheque in question the
statutory presumption under Section 139 of the N.I.Act is to be
drawn in favour of the applicant. The learned Trial Court has not
appreciated the provisions of Section 118 and 138 of the N.I.Act in
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proper perspective. The fact of the amount paid by the applicant
to the accused is not negated, but the learned Trial Court has
disbelieved the same. The accused had failed to rebut the
presumption and hence the judgment and order of acquittal is bad
in law and the leave to appeal must be granted.
6. Learned Ms.C.M.Shah for the respondent - State has
submitted that the learned Trial Court has appreciated all the
evidence in detail in light of the citations referred to in the
judgment and has passed the judgment and order of acquittal
which is proper and no interference is required and hence the
application for leave to appeal must be rejected.
7. Considering the submissions of learned advocate for
the applicant as also the impugned judgment and order and the
paper book produced by the learned advocate for the applicant on
record prima-facie it appears from the documents on record the
financial transaction between the parties has been proved, but the
documents on record have not been appreciated by the learned
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Trial Court in proper perspective and the application seeking leave
to appeal requires consideration.
8. Consequently, the application is allowed and disposed
of accordingly.
(S. V. PINTO,J)
F.S. KAZI
