Gujarat High Court
Patel Sarikaben Dhanjibhai vs State Of Gujarat on 13 November, 2025
NEUTRAL CITATION
R/CR.MA/20923/2025 ORDER DATED: 13/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 20923
of 2025
In
F/CRIMINAL APPEAL NO. 40323 of 2025
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PATEL SARIKABEN DHANJIBHAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR RUDRAM T TRIVEDI(12973) for the Applicant(s) No. 1
MR YUVRAJ BRAHMBHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 13/11/2025
ORAL ORDER
1. The present application for Leave to Appeal is filed by original
complainant under Section 419 (4) of the Bhartiya Nagrik Suraksha
Sanhita, 2023 ('BNSS', for short) seeking relief to file an appeal against
the judgment and order dated 30.08.2025 passed by Judicial Magistrate
First Class, Kadi in Criminal Case No.2613 of 2023 whereby the original
accused (respondent no.2 herein) has been acquitted of the charges
alleged for offences punishable was in relation to the dishonour of cheque
of Rs.1,00,000/- drawn on State Bank of India, Amrigadh,
Dist.Banaskantha bearing No.703492 dtd.10.02.2016 ('the said cheque',
for short) for the offence under Section 138 of the Negotiable Instruments
Act, 1881.
2. Heard learned advocate Mr.Trivedi for the applicant - complainant
and learned Additional Public Prosecutor Mr.Yuvraj Brahmbhatt for the
respondent - State.
NEUTRAL CITATION
R/CR.MA/20923/2025 ORDER DATED: 13/11/2025
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3.1 Learned advocate for the applicant submitted that respondent no.2
- original accused and his wife used to visit the complainant's house for
business purpose and the accused had developed trustworthy relationship.
In the month of November, 2022, the accused borrowed money from the
complainant in several installments for the purpose of buying a house. It
has been argued that between 21.11.2022 and 27.03.2023, the
complainant had advanced total sum of Rs.11,00,000/- to the accused
from her savings. The accused issued a promissory note and assured
repayment within two months and on failure to repay, the accused handed
over cheque bearing No.000003 dated 05.07.2023 drawn on Kadi Nagrik
Sahkari Bank for Rs.11,00,000/- and when the complainant deposited the
said cheque with the Bank of Baroda, Kadi Branch on 05.07.2023, it had
returned unpaid with the endorsement "Funds Insufficient". The
complainant, therefore, issued a statutory notice on 18.07.2025, which is
served to the accused on 19.07.2023. Despite the notice, accused did not
make payment within the prescribed period. Therefore, the complaint
under Section 138 of the Negotiable Instruments Act, 1881 has been filed
before the JMFC, Kadi.
3.2 It has been argued by learned advocate for the complainant that
trial Court emphasizing financial capacity of the complainant, disbelieved
the case of the applicant and acquitted the accused respondent. It has been
argued that though, in the present case, the accused respondent no.2 has
admitted his signature on the cheque and though the statutory notice
issued by the complainant has not been replied by the respondent no.2
accused, the trial Court has acquitted the accused questioning the
financial capacity of the complainant.
NEUTRAL CITATION
R/CR.MA/20923/2025 ORDER DATED: 13/11/2025
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3.3 Learned advocate for the applicant submitted that trial Court has
not properly appreciated the documents in its true perspective and relying
on the decision reported 2025 LiveLaw SC 383 in the case of Ashok
Singh vs. State of Uttar Pradesh and another it has been argued that
complainant has no onus to prove financial capacity of at the threshold.
Once the drawer admits to signing the cheque, the presumption under
Section 139 of the NI Act cannot be rebutted merely by questioning the
complainant's debt-giving capacity, especially when such a defence was
not raised in the reply notice by the accused. It has been argued that
appellant has placed on record the financial capacity of the appellant and
as there is no reply of respondent no.2 to the notice issued by applicant,
the question of considering financial capacity of the applicant cannot be
taken into consideration and, therefore, the acquittal order be quashed and
set aside.
3.4 Learned advocate for the applicant also submitted that the appellate
has proved that the cheque was issued for the legally enforceable amount
due and learned trial Court has not considered the entire evidence in
proper perspective and passed the impugned order.
4. Learned APP submitted that learned trial Court has appreciated all
the evidence and passed the order of acquittal on the well settled
principles of law after considering documents produced by the applicant
and, therefore, no interference is required and hence present application is
required to be rejected.
5. Having heard learned advocates for the parties and having
considered the submissions advanced by the respective parties so also
NEUTRAL CITATION
R/CR.MA/20923/2025 ORDER DATED: 13/11/2025
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having considered the judgment of the trial Court and having considered
the aspect that documents on record have not properly been appreciated
by the trial Court, in its proper perspective. In the peculiar facts and
circumstances of the present case, prima facie, the present application
deserves consideration. Consequently, the present application seeking
leave to appeal is granted and it is disposed of accordingly.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
