Gujarat High Court

Viral Jashvantbhai Sejpal vs State Of Gujarat on 25 September, 2025

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                             R/CR.MA/16495/2025                              ORDER DATED: 25/09/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 16495
                                                   of 2025

                                            In F/CRIMINAL APPEAL NO. 28026 of 2025
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                                                    VIRAL JASHVANTBHAI SEJPAL
                                                              Versus
                                                     STATE OF GUJARAT & ANR.
                       ==========================================================
                       Appearance:
                       AVANIKA M PANCHAL(8467) for the Applicant(s) No. 1
                       MR SANDIP M PATEL(5649) for the Applicant(s) No. 1
                       MS. C.M.SHAH, APP for the Respondent(s) No. 1
                       ==========================================================
                            CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                                         Date : 25/09/2025

                                                          ORAL ORDER

1. The applicant has filed the present application seeking leave to

appeal under Section 419(4) of the Bhartiya Nagarik Suraksha Sanhita,

2023 (for short "BNSS") against the judgment and order passed by the

learned Sessions Judge, Junagadh in Criminal Appeal No. 86 of 2024,

whereby, the learned Sessions Judge, Junagadh has allowed the appeal of

the respondent No. 2 and remanded the matter back to the learned Trial

Court. The learned Sessions Judge was also pleased to direct the applicant

and the respondent No. 2 to remain present before the learned Trial Court

on 06-05-2025, and , directed the learned Trial Court to dispose of the

matter within a period of three months and ordered the respondent No. 2

to pay an amount of Rs.20,000/- as costs to the applicant within a period

of seven days.






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2. The brief facts of the present case are as under;- 2.1 The applicant and Vivek Ajaybhai Devani, the son of the

respondent No. 2 were partners of a partnership Firm VV.Agro and in

that manner, the respondent No. 2 and the applicant were known to each

other. The parties had financial transactions between them and as the

respondent No. 2 was in need of some finance, the applicant had

advanced an amount of Rs.15,00,000/- in parts, which was to repaid by

August, 2020. Towards the outstanding amount, the respondent No. 2 had

issued Cheque No. "004095" dated 05-11-2020 for Rs.15,00,000/- from

his account with TJSB Bank, Kalavad Road, Rajkot Branch. The cheque

was deposited by the applicant in his account with Bank of Baroda,

Junagadh Branch, but the said cheque returned unpaid with the

endorsement "Account Blocked". The demand statutory notice was given,

which was duly served but the respondent No. 2 did not repay the amount

within the stipulated time, and hence, the applicant filed a complaint

under Section 138 of the N.I.Act, before the Court of the Chief Judicial

Magistrate, Junagadh, which came to be registered as Criminal Case No.

734 of 2021.

2.2 The learned Trial Court, took cognizance of the offence and after

the summons were issued to the respondent No. 2, he appeared before the

learned Trial Court and the plea of the respondent No. 2 was recorded at

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Exh.11. The applicant stepped into the witnesses box and deposed on

oath at Exh.28 and produced thirteen documentary evidences in support

of his case. After the closing pursis was filed by the learned advocate for

the applicant, the further statement of the respondent No. 2 under Section

313 of the Code of Criminal Procedure, 1973 was recorded and after the

arguments of the learned advocates for both the parties were heard, the

learned Trial Court was pleased to find the respondent No. 2 guilty for the

offence under Section 138 of the NI Act and sentence the respondent No.

2 to simple imprisonment for two years and further ordered the

respondent No. 2 to pay an amount of Rs.30,00,000/- with 9 % interest

from the date of cheque as compensation to the applicant.

2.3 Being aggrieved and dissatisfied with the said judgment and order

of conviction, the respondent No. 2 filed Criminal Appeal No. 86 of 2024

before the Sessions Court, Junagadh and after the arguments of both the

learned advocates were heard, the learned Sessions Judge, Junagadh, by

the impugned judgment and order, was pleased to allow the appeal set

aside the order of conviction and remand the matter back to the learned

trial Court with the aforesaid directions.

3. Heard learned advocate Mr. S.M.Patel appearing for the applicant -

original complainant and learned APP Ms. C.M.Shah for the respondent

No.1 - State.





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                             R/CR.MA/16495/2025                             ORDER DATED: 25/09/2025

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4. Learned advocate Mr. S.M.Patel for the applicant submits that the

learned Sessions Judge, Junagadh has committed an error in concluding

that no specific information has been taken from the Bank Officer with

regard to the funds available in the account of the respondent No. 2 and

the learned Sessions Judge, Junagadh has not considered that the notice

was sent to the respondent No. 2 on three different addresses and the

notice was served on two addresses but it was refused on the third address

and even though there was a specific demand for repayment of the

amount of Rs.15,00,000/-, the respondent No. 2 had chosen not to repay

the amount to the applicant. Hence, the intention of the respondent No. 2

of not to repay the legally enforceable due, is prima-facie, established and

the judgment and order of remand is required to be quashed and set aside.

5. Learned Additional Public Prosecutor Ms. C.M.Shah, appearing for

the respondent No. 1 - State has submitted that, on perusal of the

impugned judgment and order passed by the learned Sessions Judge,

Junagadh, the learned Sessions Judge has allowed the appeal, set aside

the judgment and order of conviction and has remanded the matter back

to the learned Trial Court and there is no order of acquittal passed in the

matter and hence the application seeking leave to appeal under Section

419(4) of the BNSS is not maintainable and the same must be rejected.








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                             R/CR.MA/16495/2025                            ORDER DATED: 25/09/2025

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6. Considering the submission of the learned advocate for the

applicant and learned Additional Public Prosecutor for the respondent

No.1 - State, the learned Sessions Judge, Junagadh has discussed the

entire evidence and allowed the appeal and set aside the judgment and

order of conviction and has remanded the matter back for trial afresh but

has not passed any order of acquittal. The parties have been directed to

remain present before the learned Trial Court on 06-05-2025 and the

learned Trial Court has been directed to conclude the trial within the

period of three months.

7. At this juncture, it would be fit to reproduce Section 419 of the

BNSS, which reads as under:

419. Appeal in case of acquittal.--(1) Save as otherwise provided in sub-

section (2), and subject to the provisions of sub-sections (3) and (5),--

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.

(2) If such an order of acquittal is passed in a case in which the offence has been investigated by any agency empowered to make investigation into an offence under any Central Act other than this Sanhita, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal--

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(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.

(3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub- section (2).

8. Admittedly, the impugned judgment and order that has been

challenged in this appeal, is the order of remand passed by the learned

Sessions Judge, Junagadh, wherein, the judgment and order of conviction

has been set aside and the matter is remanded back to the learned Trial

Court for disposal according to law. The present application is filed under

Section 419(4) of the BNSS and as per the provisions of Section 419(4)

of the BNSS, when an order of acquittal passed in any case instituted

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upon a complaint, the complainant can make an application to the High

Court seeking special leave to appeal against the order of acquittal and