Gujarat High Court
Prabhudasbhai Dharamsibhai ... vs State Of Gujarat on 15 July, 2025
NEUTRAL CITATION
R/CR.MA/10214/2025 ORDER DATED: 15/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 10214
of 2025
In F/CRIMINAL APPEAL NO. 19930 of 2025
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PRABHUDASBHAI DHARAMSIBHAI BORKHATARIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MANAN A SHAH(5412) 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 : 15/07/2025
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 passed by the learned 11th
Additional Chief Judicial Magistrate, Surat (hereinafter referred to
as the "learned Trial Court") in Criminal Case No. 5485 of 2019 on
27.03.2025, whereby the respondent No. 2 - original accused came
to be acquitted from the offence under Section 138 of the
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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 accused is the brother-in-law of the applicant's son
Dharmeshbhai and the accused wanted to sell his property at
Pasodara, Surat. The amount for the property was decided at
Rs.15,00,000/- and a written contract dated 26.01.2014 was
executed between the parties. The applicant had paid
Rs.15,00,000/- in parts by cash and cheques to the accused but as a
mortgage loan of Canara Bank was on the property, the accused
assured the applicant that the registered sale deed of the property
would be executed after the loan was repaid. The registered sale
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deed was not executed in time and the applicant filed an
application against the accused before the Commissioner of Police,
Surat during the inquiry of the application and an agreement was
executed to repay the amount of the property. The accused issued
cheque No.132551 for Rs. 15,00,000/- dated 19.12.2018 from his
account with the HDFC Bank, Ring Road, Surat Branch. The
applicant deposited the cheque on 19.12.2018 in his account and
the cheque was dishonored and the reason mentioned in the
return memo dated 20.12.2018 was "Account Closed". The
applicant sent the statutory demand notice to the accused on
01.01.2019 which was duly served on 09.01.2019 and an evasive
reply was given by the accused, but no payment was made and
hence the applicant filed the criminal complaint before the Court
of the Chief Judicial Magistrate, Surat under Section 138 of the N I
Act, 1881 which was registered as Criminal Case No. 5485 of 2019.
2.2. The accused was served with the summons and the
accused appeared before the learned Trial Court and after his plea
was recorded at exhibit 07 the evidence of the applicant was taken
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on record. The applicant and one witness were examined on oath
and 11 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 denied all the allegations and
stated that he had not issued any cheque in the name of applicant
towards any legal enforceable debt and a false complaint was filed.
The accused stepped into the witness box and examined one
witness and 08 documentary evidences were produced in his
defence and 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 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.
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4. Heard learned advocate Mr. Manan A. Shah appearing
for the applicant and learned APP Mr. Pranav Dhagat for the
respondent - State.
5. Learned Advocate Mr. Manan A. Shah 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 NI Act in
proper perspective. 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 APP Mr. Pranav Dhagat for the respondent -
State has submitted that the learned Trial Court has appreciated all
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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, the written contract dated 26.01.2014 produced at exhibit
09, was executed between the accused and the applicant. The
applicant had paid the accused Rs.9,00,000/- in parts in cash and
the remaining amount of Rs.6,00,000/- was paid by cheque
No.000014 for Rs.3,50,000/- and No.000016 for Rs. 2,50,000/- both
dated 08.08.2017 from his account with Bank of Baroda, Piplod,
Surat Branch and both cheques amounts are reflected in the bank
statement of the applicant at exhibit 10 and 11. The accused
stepped into the witness box and examined one witness at exhibit
58 and 08 documentary evidences were produced on record. The
evidence of witness Satishbhai Chhaganbhai Solanki at exhibit 58
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admits that some financial transaction in cash has taken place
between the applicant and the accused. From the documents on
record, prima facie it appears that the financial transaction
between the parties has been proved, but the documents on record
have not been appreciated by the learned 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
