Gujarat High Court
Shaukatali Amirali Khoja vs State Of Gujarat on 7 October, 2025
NEUTRAL CITATION
R/CR.MA/19756/2024 ORDER DATED: 07/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO.
19756 of 2024
In F/CRIMINAL APPEAL NO. 29038 of 2024
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SHAUKATALI AMIRALI KHOJA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR VIJAY H NANGESH(3981) for the Applicant(s) No. 1
MS VIRAL A DETROJA(12122) for the Respondent(s) No. 2
MR ADITYA JADEJA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/10/2025
ORAL ORDER
1. The present application is filed by the applicant -
original complainant seeking leave to file an appeal against the
judgment and order dated 14.03.2024 passed by the learned
Additional Judicial Magistrate First Class, Mundra in Criminal
Case No. 308 of 2020, whereby the original accused -
respondent No. 2 herein came to be acquitted from the charge
levelled against him under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act") as
well as the complainant was ordered to give Rs.10,000/- as
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compensation to the respondent no.2 within 10 days, and in
default, simple imprisonment of 20 days as per the provisions of
Section 257(3) of the Cr.P.C.
1.1. The parties are referred to as the "complainant and
"the accused" 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 complainant and the accused reside at the same
address and the ancestral property of the family of the
complainant situated at village Mundra bearing Survey No. 3044
jointly belongs to the complainant and his brothers. The
accused, by gaining the trust of the complainant and his
brothers, managed to get a registered sale deed of the said
property executed in his favour and, towards part payment,
issued cheque No.000046 for an amount of Rs.1,50,000/- from his
account with Bandhan Bank, Baladia Branch dated 15.07.2020.
When the complainant deposited the said cheque in his account
with State Bank of India, Mundra Branch, the cheque was
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returned unpaid on 17.07.2020. When the complainant informed
the accused, the accused assured the complainant to redeposit
the cheque after some time. However, when the complainant
had redeposited the said cheque on 05.08.2020, the same was
again dishonoured on 07.08.2020 with the endorsement
"Drawers Signature Differs". Thereafter, the demand statutory
notice was issued on 26.08.2020 and also a public notice in the
newspaper "Kutch Mitra" was issued, despite this, the accused
failed to make the payment and hence, the complainant filed the
present complaint under Section 138 of the Negotiable
Instruments Act, 1881.
2.2. The accused was served with the summons and
appeared before the learned Trial Court and his plea was
recorded at Exh.14 and the evidence of the complainant was
taken on record. The complainant at Exh.06 was examined on
oath and 07 documentary evidences were produced in support
of the case and after the closing pursis at Exh.30 was filed, the
further statement of the accused under Section 313 of the Code
of Criminal Procedure was recorded, wherein the accused
stated that no transaction has taken place between the
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complainant and the accused regarding the land and he has not
purchased the land as stated in the complaint and a false
complaint has been filed and no legally enforceable amount is
due from the accused. The accused did not step into the witness
box but produced 02 documentary evidences in support of his
defence. After the evidence of the accused was closed the
arguments of the learned advocates for both the parties were
heard and by the impugned judgment and order, the learned
Trial Court acquitted the accused from the offence under Section
138 of the N.I.Act and the complainant was ordered to give
Rs.10,000/- as compensation to the respondent no.2 within 10
days, and in default, simple imprisonment of 20 days as per the
provisions of Section 257(3) of the Cr.P.C..
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. Mangal Gadhavi for
learned advocate Mr.Vijay Nangesh appearing for the applicant
and learned APP Mr. Aditya Jadeja for the respondent - State.
5. Learned Advocate Mr. Mangal Gadhavi 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 respondent no.2 from
the bank account maintained by him 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 N.I.Act in proper perspective. The oral contract
is not negated by the accused and the fact of the amount paid by
the applicant to the accused is also not negated, but the learned
Trial Court has disbelieved the same. The accused had failed to
rebut the presumption and the financial capacity of the applicant
was never put to challenge and hence the judgement and order
of acquittal is bad in law and the leave to appeal must be
granted.
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6. Learned APP Mr.Aditya Jadeja has submitted that the
learned Trial Court has appreciated all the evidence in detail in
light of the citations referred to in the judgement and has passed
the judgement and order of acquittal, which is proper and no
interference is required and hence the application for leave to
appeal must be rejected.
7. In light of the above settled principles of law and
considering the arguments advanced by the learned advocates
for the parties and on perusal of the impugned judgment and
order and paperbook submitted by the learned advocate for the
applicant on record, it transpires that the complaint has been
filed by the applicant stating that property bearing City Survey
No.3044 situated in Mundra was sold to the respondent no.2
towards which cheque 000046 dated 15.07.2020 for
Rs.1,50,000/- from his account with Bandhan Bank, Baladia
Branch was issued and as the cheque returned unpaid, the
complaint came to be filed. As per the case of the applicant the
cheque was for the sale of property bearing City Survey
No.3044 situated in Mundra. During the cross-examination of the
applicant by the learned advocate for the respondent no.2, the
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applicant has admitted that the property was sold by himself
and his three brothers for Rs.23,20,000/- and he had received a
cheque of Rs.23,20,000/- for the sale price and the cheque was
cleared. The applicant has also admitted that he did not produce
the copy of the registered sale deed or the agreement to sell
and he could not say as to whether in the sale deed it was
mentioned that the amount of Rs.1,50,000/- was outstanding
towards the sale price of the property. In the further statement
of the accused, the accused denied all the evidence on record
and stated that no transaction had ever taken place between the
applicant and the respondent no.2 and no property was
purchased by the respondent no.2. The respondent no.2 has
produced the copy of the registered sale deed for City Survey
No.3044 at Exh.37 and the property has been purchased by one
Nirmalaben Narendrabhai Thakkar from the applicant and his
three brothers. The registered sale deed was executed for
Rs.23,20,000/- which was the market value of the property and
the document states that the amount of Rs.23,20,000/- was
received by the applicant and his brothers by cheques.
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7.1. It is the case of the applicant that the cheque in
question was given for the purchase price of the property
bearing City Survey No.3044 situated in Mundra, which was
purchased by the respondent no.2, but by the document
produced at Exh.37, it is proved that property bearing Revenue
Survey No.3044 situated in Mundra was purchased by one
Nirmalaben Narendrabhai Thakkar residing at 22, Vishalnagar,
Junawas, Madhapur, Taluka Bhuj, District Kutch and the
purchase price of Rs.23,20,000/- was received by the applicant
and his brothers. Hence, there is no iota of evidence to prove
that any amount was outstanding from the respondent no.2 or
that the respondent no.2 had ever purchased the property from
the applicant and there is no legally enforceable due amount
from the respondent no.2.
8. The learned Trial Court has appreciated the entire
evidence and has rightly concluded that the applicant has failed
to produce reliable and cogent evidence and record about the
legally recoverable debt from the respondent no.2 and the
applicant has not proved his case beyond reasonable doubt.
The learned Trial Court has concluded that the accused has
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successfully rebutted the presumption based on preponderance
of probability and, in light of the above observation, the learned
Trial Court has passed the impugned judgment and order of
acquittal, which is just and proper and does not require any
interference of this Court.
9. Consequently, the present application seeking leave
to present an appeal under Section 419(4) of the Bhartiya Nagrik
Suraksha Sanhita fails and is hereby dismissed.
10. Since the leave to prefer appeal is rejected, no order
is required to be passed in the Criminal Appeal, which is at
filing stage and the same stands disposed accordingly.
(S. V. PINTO,J)
F.S. KAZI
