Gujarat High Court
Vicky Hasmukhrai Patel vs Kishore Shankarlal Bhanushali on 11 July, 2025
NEUTRAL CITATION
R/CR.MA/12355/2025 ORDER DATED: 11/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 12355
of 2025
In F/CRIMINAL APPEAL NO. 23224 of 2025
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VICKY HASMUKHRAI PATEL
Versus
KISHORE SHANKARLAL BHANUSHALI & ANR.
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Appearance:
MR DAIFRAZ HAVEWALLA(3982) for the Applicant(s) No. 1
MR PRANAV DHAGAT, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 11/07/2025
ORAL ORDER
1. The present application is filed by the applicant -
original complainant seeking leave to file an appeal against the
order dated 01.05.2025 passed by the Additional Chief Judicial
Magistrate, Vapi, (hereinafter referred to as the "learned Trial
Court") in Criminal Case No. 11849 of 2024, whereby, the
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.Daifraz Havewalla for the
applicant and learned APP Mr. Pranav Dhagat for the respondent
No.2 - State.
3. Learned advocate Mr.Daifraz Havewalla for the
applicant submits that the applicant was the owner of the
agricultural land bearing Survey No.2128 situated at Village
Tukwada, Taluka Pardi and the said land was purchased by the
accused along with Mukesh Shankarlal Bhanushali and Suresh
Shankarlal Bhanushali by a registered sale deed No. 2205 dated
07.08.2021. The possession of the land was handed over on the
same day and a Notarized Memorandum of Understanding was
executed between the parties on 20.04.2022 agreeing that the
registered sale deed was executed for the jantri rate of the land,
which was of Rs.83,05,000/- and stamp of Rs.4,06,945/- was paid
for the same, but the market rate of the land was Rs.11,59,05,000/-,
which was the price agreed upon between the parties. As per the
MOU, an amount of Rs.10,76,00,000/- was to be paid and the
respondent no. 1 and the other two purchasers had issued cheques
in favour of the applicant. For the said transaction, the respondent
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R/CR.MA/12355/2025 ORDER DATED: 11/07/2025
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no. 1 issued cheque nos. 286994 and 286995 dated 10.05.2024 for
the amount of Rs.1,00,00,000/- each from his account with Punjab
National Bank, Vapi Branch. The said cheques were deposited by
the applicant in his account with IndusInd bank, Vapi Branch, but
the cheques returned unpaid with the endorsement "Payment
Stopped by Drawer". The demand statutory notice was given,
which was duly served to the respondent no. 1 and despite the
service of notice, the respondent no.1 did not reply to the notice
and did not repay the amount within the stipulated period, and
hence, the applicant filed a complaint under Section 138 of the
N.I.Act before the Court of Chief Judicial Magistrate, Vapi, which
came to be registered as Criminal Case No. 11849 of 2024. After the
learned Trial Court took cognizance of the offence, the summons
were duly served and the plea of the respondent no.1 was
recorded after he appered before the learned Trial Court. The
entire evidence of the applicant was taken on record. Learned
advocate for the applicant submits that the applicant has produced
a copy of the sale deed at Exh.29, copy of MOU at Exh.52 and other
two documents including receipts for change of cheques at Exhs.
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53 and 54 respectively. The applicant examined two witnesses in
support of his case at Exhs. 51 and 56 respectively and after the
closing pursis was filed, the further statement of the respondent
no.1 was recorded, wherein, the respondent no.1 denied the
evidence against him and took a defence that there was another
transaction between the parties for developing the land situated at
village Kikarala and the signature of the respondent no. 1 was
taken by the applicant and the blank cheques have been misused.
Learned advocate for the applicant submits that the respondent
no. 1 did not produce any evidence regarding the land of the
applicant at village Kikarala or any development agreement for
the land situated at village Kikarala and without appreciating the
documents in proper perspective, the learned Trial Court was
pleased to pass the order of acquittal mainly on the ground that
the contract or the transaction between the parties is illegal and the
applicant could not be allowed to enforce the illegal transaction as
also the presumption under Section 85 of the Evidence Act would
not be available as the MOU was attested by a Notary Public. The
learned Trial Court was also pleased to hold that the transaction,
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R/CR.MA/12355/2025 ORDER DATED: 11/07/2025
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which was not reflected in the books of account, could not be
permitted to be enforced and has passed the impugned judgment
and order of acquittal. Learned advocate for the applicant submits
that the transaction entered into between the parties was a legal
transaction as the amount was to be received by the applicant was
to be received through cheques and the same would be reflected in
his Income Tax Returns. Learned advocate for the applicant
further submits that it is not the case of the applicant that the
amount was to be taken in cash but the MOU was executed
between the parties and the amount that was to be received by the
applicant was to be paid by the cheques. Learned advocate for the
applicant further submits that the learned Trial Court has not
appreciated the entire evidence in proper perspective, even though
it was not defence of the respondent no.1 and the respondent no.1
had not rebutted the presumption and raised a plausible defence
the impugned judgment and order has been passed. Learned
advocate submits that the applicant has a good case on merits and
has urged this Court to allow the present application.
4. Learned APP Mr. Pranav Dhagat for the respondent -
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State has submitted that the learned Trial Court has considered all
the evidence produced by the applicant in proper perspective and
has passed the impugned order 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 produced by the
learned advocate for the applicant, prima-facie, it appears that the
learned Trial Court has failed to appreciate the evidence on record
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
