Gujarat High Court

Banubibi Akbarmiya Saiyad Through Poa ... vs Saiyad Shabbirali Akbarmiya on 18 June, 2025

                                                                                                                NEUTRAL CITATION




                             R/CR.MA/4440/2025                                     ORDER DATED: 18/06/2025

                                                                                                                 undefined




                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 4440 of
                                                   2025

                                            In F/CRIMINAL APPEAL NO. 8562 of 2025

                       ==========================================================
                            BANUBIBI AKBARMIYA SAIYAD THROUGH POA SAIYAD NISARMIYA
                                                   PIRSABMIYA
                                                      Versus
                                       SAIYAD SHABBIRALI AKBARMIYA & ANR.
                       ==========================================================
                       Appearance:
                       MR ARPIT A KAPADIA(3974) for the Applicant(s) No. 1
                       MR AFTABHUSEN ANSARI(5320) for the Respondent(s) No. 1
                       MR. PRANAV DHAGAT, APP for the Respondent(s) No. 2
                       ==========================================================

                         CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                                               Date : 18/06/2025

                                                                ORAL ORDER

1. The present application is filed by the applicant -

original complainant seeking leave to file an appeal against

the judgement and order dated 21.12.2024 passed by the

learned 20th Additional Chief Judicial Magistrate, Vadodara

(hereinafter referred to as the "learned Trial Court") in

Criminal Case No. 38937/2018, whereby, the learned Trial

Court was pleased to acquit the accused from the offence

under Section 138 of Negotiable Instrument Act, 1881

(hereinafter referred to "the NI Act" for short).

NEUTRAL CITATION

R/CR.MA/4440/2025 ORDER DATED: 18/06/2025

undefined

2. Heard learned advocate Mr. Arpit Kapadia for the

applicant, learned advocate Mr. Aftabhusen Ansari for the

respondent no. 1 and learned APP Mr. Pranav Dhagat for

the respondent State.

3. Learned advocate Mr. Arpit Kapadia for the applicant

submits that the applicant was the owner of land bearing

revenue survey nos. 302, 307, 432 and 435 situated in

village Samilaya, Taluka Vadodara. Out of the said lands,

some portion of survey nos. 302 and 307 were acquired by

the Authority in the Mumbai - Vadodara Express Way and

an amount of Rs. 5,20,35,095/- was paid as compensation

and the applicant was entitled to 33.33% of the amount

being Rs. 1,73,45,028/-. The amount was deposited in the

account of the respondent no. 1 and the respondent no. 1

had to pay the amount to the applicant and a document to

that effect was executed on 21.08.2018. The respondent no.

1 gave cheque no. 810804 for the amount of Rs. 1,45,028/-

dated 07.09.2018 and cheque no. 810810 dated 05.09.2018

for the amount of Rs. 1,72,00,000/- from his account with

UCO Bank, Bil Branch. The cheques were deposited by the

NEUTRAL CITATION

R/CR.MA/4440/2025 ORDER DATED: 18/06/2025

undefined

applicant in his account with UCO Bank, Bil Branch but

both the cheques returned unpaid with the endorsement

"Funds Insufficient". The demand statutory notice was given

and the respondent no. 1 did not pay the amount within the

stipulated period and hence, the applicant filed criminal

complaint under Section 138 of the Negotiable Instruments

Act before the Court of the Chief Judicial Magistrate,

Vadodara which came to be registered as Criminal Case No.

38937 of 2018. The summons were duly served to the

respondent no. 1 and he appeared before the learned Trial

Court and the plea of the respondent no. 1 was recorded at

Exh.8. The applicant produced his affidavit of examination-

in-chief at Exh. 4 and submitted 26 documentary evidences

including the document executed between the parties at

Exh. 26 but the respondent no. 1 did not appear to cross-

examine the applicant and the right of cross-examination of

the complainant was closed and as the respondent no. 1 did

not remain present, his further statement could not be

recorded. Considering the evidence on record, the learned

5th Additional Judicial Magistrate First Class, Vadodara was

NEUTRAL CITATION

R/CR.MA/4440/2025 ORDER DATED: 18/06/2025

undefined

pleased to convict the respondent no. 1 for the offence

under Section 138 of the Negotiable Instruments Act and

sentenced the respondent no. 1 to simple imprisonment of

five months and ordered the respondent no. 1 to pay the

amount of cheques of Rs. 1,45,028/- and Rs. 1,72,00,000/-

as compensation under section 357(3) of the Code of

Criminal Procedure, 1973 to the applicant within 30 days

from the date of the order and in default to undergo simple

imprisonment for one month. Being aggrieved and

dissatisfied with the said judgment and order of conviction

dated 30.11.2021, the respondent no. 1 preferred Criminal

Appeal No. 30 of 2021 before the Sessions Court, Vadodara

and the learned 2nd Additional Sessions Judge, Vadodara

was pleased to remand the matter back for trial to the

learned Trial Court. After the matter was sent back to the

learned Trial Court, the respondent no. 1 once again did not

appear before the learned Trial Court and by an order

passed below Exh. 34 on 05.04.2020, the stage of cross-

examination was once again closed. The respondent no. 1

filed an application at Exh. 37 to reopen the stage of cross-

NEUTRAL CITATION

R/CR.MA/4440/2025 ORDER DATED: 18/06/2025

undefined

examination on 19.09.2022 and the learned Trial Court

imposed a cost of Rs. 2000/- and opened the stage of cross-

examination. The learned advocate for the respondent no. 1

cross-examined the applicant on 17.07.2023 and on the

same day, the applicant filed an application at Exh. 42 that

he wanted to examine witnesses and to reopen the stage of

evidence but by an order dated 12.10.2023, the learned 27 th

Additional Chief Judicial Magistrate, Vadodara was pleased

to reject the application of the applicant. Being aggrieved

and dissatisfied with the said order, the applicant had

preferred Criminal Revision No. 43 of 2024 before the

Sessions Court, Vadodara on 16.02.2024 and the matter

was admitted and notice was issued to the other side. The

matter was pending for service of process to the respondent

no. 1 and by the impugned judgment and order dated

21.12.2024, the learned 20 th Additional Chief Judicial

Magistrate, Vadodara was pleased to acquit the respondent

no. 1 from the offence under Section 138 of the Negotiable

Instrument Act. Learned advocate submits that after the

cross-examination of the applicant by the learned advocate

NEUTRAL CITATION

R/CR.MA/4440/2025 ORDER DATED: 18/06/2025

undefined

for the respondent no. 1, certain evidences had come on

record and the application for producing evidence of the

applicant ought to have been granted in the interest of

justice as the applicant wanted to examine witnesses and

produce evidence on record, but the learned Trial Court had

rejected the application at Exh. 42 and the same was under

challenge before the learned Sessions Court. That the

respondent no. 1 avoided service and even though the

matter was pending for consideration before the learned

Sessions Court, the learned Trial Court has passed the

impugned judgment and order of acquittal and hence, the

application seeking leave to appeal must be granted.

4. Learned advocate Mr. Aftab Hussain Ansari for the

respondent no. 1 and learned APP Mr. Pranav Dhagat for

the respondent State have jointly submitted that the learned

Trial Court has considered all the documentary evidences

and has passed the impugned judgment in order of

acquittal and no interference is required.

5. Considering the submissions of learned advocates for

NEUTRAL CITATION

R/CR.MA/4440/2025 ORDER DATED: 18/06/2025

undefined

the parties as also on perusal of the paper book produced

by the learned advocate to the applicant on record, prima

facie it appears that after the cross-examination of the

applicant, new material had come on record and the

applicant ought to have been given a chance to produce his

evidence. The earlier order of conviction passed by the

learned 5th Additional Judicial Magistrate First Class,

Vadodara was passed when the evidence produced by the

applicant on record was not challenged but after the cross-