Gujarat High Court
Harshad Ganpatbhai Solanki vs State Of Gujarat on 11 September, 2025
NEUTRAL CITATION
R/CR.MA/17375/2025 ORDER DATED: 11/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 17375
of 2025
In F/CRIMINAL APPEAL NO. 21459 of 2025
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HARSHAD GANPATBHAI SOLANKI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR K B VIRVADIYA(11272) for the Applicant(s) No. 1
MR. NISHIT P GANDHI(6946) for the Applicant(s) No. 1
MS. CHETNA SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 11/09/2025
ORAL ORDER
1. The present application is filed by the applicant - original
complainant under Section 419 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (hereinafter referred to as "the BNSS") seeking leave to
appeal against the judgment and order dated 17-02-2025 passed by the
learned Sessions Judge, Bharuch hereinafter referred to as the " the
learned appellate Court) acquitted the respondent No. 2 in Criminal
Appeal No. 99 of 2023 filed by the respondent No. 2 challenging the
judgment and order of conviction passed by the learned 3rd Additional
Chief Judicial Magistrate, Bharuch ( hereinafter referred to as "the
learned Trial Court) in Criminal Case No. 2922 of 2022 for the offence
under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter
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R/CR.MA/17375/2025 ORDER DATED: 11/09/2025
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referred to as 'the NI Act").
2. Heard learned advocate Mr. K.B.Viravadiya appearing for the
applicant, learned APP Ms. Chetna Shah for the respondent No. 1 - State.
3. Learned advocate Mr. K.B.Virvadiya for the applicant submits that
the applicant and the respondent No. 2 were friends and known to each
other and the applicant had advanced an amount of ₹9,00,000/- in parts to
the respondent No. 2 in the year 2020. Towards the amount, the
respondent No. 2 gave cheque No. "037107" dated 01.01.2022 for
₹9,00,000/- from his account with State Bank of India, Mohammedpura,
Baruch Branch The cheque was deposited by the applicant in his account
with H.D.F.C. Bank, Link Road, Bharuch branch but the cheque returned
unpaid with the endorsement "Funds Insufficient". The demand statutory
notice was given towards which, an evasive reply was given by the
respondent No. 2 to Jatin Pravinchandra Keshuvala, the Proprietor of
Jhanvi Finance but the amount was not paid within the stipulated period
and hence the applicant filed the criminal complaint under Section 138 of
the Negotiable Instrument Act, 1881 before the learned Chief Judicial
Magistrate, Bharuch, which came to be registered as Criminal Case No.
2966 of 2022. After the respondent No. 2 was duly served with the
summons, he appeared before the learned trial Court and his plea was
recorded at Exhibit 7 and the applicant submitted his affidavit of
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examination-in-chief at Exhibit 4 and produced seven documentary
evidences on record. Learned advocate submits that the respondent No. 2
had also executed a promissory note, which was produced at Exhibit 90
and the applicant had proved that the amount of ₹9,00,000/- was the
legally enforceable claim amount due from the respondent No. 2 towards
which the cheque in question was given. At the end of the trial, the
learned Trial Court, by the impugned judgment and order dated
01.02.2023 was pleased to convict the respondent No. 2 for the offence
under Section 138 of the Negotiable Instrument Act, 1881 and sentenced
the respondent No. 2 to simple imprisonment of one year and fine of
₹10,000/- and in default simple imprisonment for 30 days. The learned
trial Court was also pleased to order the respondent No. 2 to pay an
amount of ₹9,00,000/- under Section 357 (3) of the Code of Criminal
Procedure, 1973 to the applicant.
3.1 Being aggrieved and dissatisfied with the order of conviction, the
respondent No. 2 preferred Criminal Appeal No. 99 of 2023 before the
Session Court, Bharuch and after the arguments of learned advocates for
both the parties were heard, the learned Sessions Judge, Bharuch, by the
impugned judgment and order dated 17.02.2025 was pleased to set aside
the judgment and order of conviction of the learned Trial Court and
acquit the respondent No. 2 from the offence under Section 138 of the
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Negotiable Instrument Act, 1881. Learned advocate for the applicant
submits that the applicant has a good case on merits and the applicant had
proved beyond reasonable doubts that the cheque in question was given
towards the legally enforceable debt, but the learned Sessions Court did
not appreciate the evidence in proper perspective.
4. Learned APP Ms. Chetna Shah for the respondent No.2 - State
submits that learned Sessions Court has appreciated all the evidence in
proper perspective and no interference is required and hence the
application may be rejected.
5. Considering the submissions advanced by the learned advocate for
the applicant as also on perusal of the impugned judgment and order
passed by the learned Sessions Judge, Bharuch and the judgment and
order of conviction passed by the learned trial Court, prima-facie, it
appears that the same set of evidence have been appreciated by two
Courts in a different manner and hence, the issue requires consideration.
Consequently, the application seeking leave to appeal is allowed.
(S. V. PINTO,J)
VVM
