Gujarat High Court
Vinodrai Shambhurai Thummar Poa ... vs State Of Gujarat on 7 July, 2025
NEUTRAL CITATION
R/CR.MA/9431/2025 ORDER DATED: 07/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 9431 of
2025
In F/CRIMINAL APPEAL NO. 11886 of 2025
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VINODRAI SHAMBHURAI THUMMAR POA PUSHPABEN VINODRAI
THUMMAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR JAY H PATEL(11511) for the Applicant(s) No. 1
MR PRANAV DHAGAT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/07/2025
ORAL ORDER
1. The present application is filed by the applicant -
original complainant seeking leave to file an appeal against the
order dated 20.11.2024 passed by the learned 17 th Additional Chief
Metropolitan Magistrate, N.I.Court No.36, Ahmedabad
(hereinafter referred to as the "learned Trial Court") in Criminal
Case No. 61890 of 2021, 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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2. Heard learned advocate Mr.Jay H. Patel for the
applicant and learned APP Mr.Pranav Dhagat for the respondent
No.1 - State.
3. Learned advocate Mr.Jay H. Patel for the applicant
submits that the applicant has filed the present case as a Power of
Attorney Holder of his wife namely Pushpaben Vinodrai
Thummar. The applicant and the respondent no. 2 were known to
each otherfor many years and were friends. The respondent no. 2
has two readymade showrooms, one in Maninagar and another in
Navrangpura and is also an authorized dealer of Cambridge brand
clothes. As the respondent no. 2 was in need of some finance for
his business, he demanded the amount from the applicant and an
amount of Rs.2,50,000/- was transferred to the respondent no. 2 by
RTGS from the account of Pushpaben Vinodrai Thummar with
Central Bank of India on 01.07.2017 and an amount of Rs.10,000/-
was given to the respondent no. 2 in cash. When the amount was
demanded back, the respondent no. 2 issued cheque No. 127596
dated 08.03.2021 for an amount of Rs.2,60,000/- from his account
with Axis Bank, Bapunagar Branch, Ahmedabad. The applicant
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R/CR.MA/9431/2025 ORDER DATED: 07/07/2025
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deposited the said cheque in the account with Kotak Mahindra
Bank, Bapunagar Branch, Ahmedabad but the cheque returned
unpaid with the endorsement "Account Blocked" (situation
covered in 21-25). The demand statutory notice was given, which
was duly served to the respondent no. 1 and the respondent no. 1
gave evasice 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 Chief Metropolitan
Magistrate, Ahmedabad, which came to be registered as Criminal
Case No. 61890 of 2021. After the respondent no.2 was duly served
with the summons, he appeared before the learned Trial Court and
his plea was recorded and the applicant produced oral and
documentary evidence in support of his case. Learned advocate for
the applicant submits that respondent no. 2 had also taken an
amount of Rs.7,40,000/- from Vinodrai Shamburai Thummar, the
husband of Pushpaben Vinodrai Thummar and had also issued six
cheques towards the outstanding amount and those cheques had
also returned unpaid, and hence, Vinodrai Shamburai Thummar
had filed Criminal Case No. 61886 of 2021 under Section 138 of the
N.I.Act before the court of Chief Metropolitan Magistrate,
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Ahmedabad. After the evidence was produced on record and as
both the cases were on same day, the cross-examination of
Vinodrai Shamburai Thummar was taken in Criminal Case No.
61886 of 2021 but the cross-examination of Vinodrai Shamburai
Thummar, as Power of Attorney Holder of Pushpaben Vinodrai
Thummar in Criminal Case No.61890 of 2021 was not recorded but
the learned Trial Court considered the cross-examination of
Vinodrai Shamburai Thummar in Criminal Case No. 61886 of 2021
and appreciated the cross-examination as if it was of the cross-
examination of Criminal Case No. 61890 of 2021. Learned advocate
submits that in fact, the cross-examination was not taken on record
and entire evidence of Criminal Case No, 61886 of 2021 wrongly
appreciated by the learned Trial Court in Criminal Case No. 61890
of 2021. 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.
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R/CR.MA/9431/2025 ORDER DATED: 07/07/2025
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4. 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.
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
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
