Gujarat High Court
Tapan Mukesh Shah vs Devine Infrastructure Owner Alkaben ... on 9 June, 2025
NEUTRAL CITATION
R/CR.MA/7822/2025 ORDER DATED: 09/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION (FOR LEAVE TO APPEAL) NO. 7822 of
2025
In F/CRIMINAL APPEAL NO. 14653 of 2025
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TAPAN MUKESH SHAH
Versus
DEVINE INFRASTRUCTURE OWNER ALKABEN SANJIVBHAI BHAKTA &
ORS.
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Appearance:
MR HIMANSHU C DESAI(6832) for the Applicant(s) No. 1
MS.CETNA SHAH, APP for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 09/06/2025
ORAL ORDER
1. The present application is filed by the applicant -
original complainant under Section 419(4) of the BNSS, 2023
seeking leave to file an appeal against the judgment and order
dated 18.02.2025 passed by the learned 13th Additional Chief
Judicial Magistrate, Vadodara in Criminal Case No. 8186 of 2022,
whereby, the respondent nos. 1 and 2 - original accused came to
be acquitted from the charge levelled against them under Section
138 of Negotiable Instrument Act, 1881 (hereinafter referred to as
"N.I.Act").
NEUTRAL CITATION
R/CR.MA/7822/2025 ORDER DATED: 09/06/2025
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2. Heard learned advocate Mr.Himanshu C. Desai for the
applicant and learned APP Ms.Chetna Shah for the respondent
No.1 - State.
3. Learned advocate Mr.Himanshu Desai for the
applicant submits that the applicant is engaged in the business of
finance and the respondent No.2 is the owner of the respondent
No.1 - Divine Infrastructure and was borrowing money from the
present applicant. A ledger account of the respondent No.2 was
maintained by the applicant in the books of accounts. The
transaction between the parties was going on from 28.10.2020 to
31.12.2021 and an amount of Rs.15,00,000/- was outstanding
which was not paid by the respondent No.2. On demand, the
respondent No.2 issued cheque No.000162 dated 31.12.2021 of
Rs.15,00,000/- from her account with the Kotak Mahindra Bank,
Kabir Plaza, Makarpura, Vadodara Branch. The cheque was
deposited by the applicant in his account with Central Bank of
India, Karelibaug, Vadodara Branch, but the cheque returned
unpaid with the endorsement "Account Closed". The demand
statutory notice was given, which was duly served to the
NEUTRAL CITATION
R/CR.MA/7822/2025 ORDER DATED: 09/06/2025
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respondent Nos. 1 and 2 but the respondent Nos.1 and 2 did not
send any reply to the notice nor repaid the amount, and hence, the
applicant filed a complaint under Section 138 of N.I.Act before the
Court of learned Chief Judicial Magistrate, Vadodara, which came
to be registered as Criminal Case No. 8186 of 2021. The respondent
Nos. 1 and 2 were duly served and the respondent No. 2 appeared
before the learned Trial Court and the entire evidence of the
applicant was taken on record. During trial, the applicant
produced a copy of the ledger account and the entire transaction
between the parties and the legally enforceable debt was proved.
During the cross-examination, the applicant has admitted that
certain amounts has been paid by the respondent Nos. 1 and 2 but
the learned Trial Court has not appreciated the evidence produced
by the applicant in proper perspective and by the impugned
judgment and order was pleased to acquit the respondent Nos.1
and 2 from the offence under Section 138 of the N.I.Act. Learned
advocate submits that the applicant has a good case on merits, and
hence, the application for leave to appeal may be granted.
4. Learned APP Ms. Chetna Shah for the respondent State
NEUTRAL CITATION
R/CR.MA/7822/2025 ORDER DATED: 09/06/2025
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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 the paper book on record and the impugned
judgment and order, prima facie, it appears that the applicant has
produced the necessary documents including a copy of ledger
account of his account Central Bank of India as evidence in
support of his case but 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
