Gujarat High Court
Ilaben Bakrushnabhai Rajyaguru vs Rudra Developers on 26 September, 2025
NEUTRAL CITATION
R/CR.MA/8535/2024 ORDER DATED: 26/09/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 8535 of
2024
In F/CRIMINAL APPEAL NO. 16283 of 2024
==========================================================
ILABEN BAKRUSHNABHAI RAJYAGURU
Versus
RUDRA DEVELOPERS & ORS.
==========================================================
Appearance:
MR JAYDEVSINH CHUDASAMA(13128) for the Applicant(s) No. 1
MR PREM D DAVE(10958) for the Applicant(s) No. 1
DEEPAK N KHANCHANDANI(7781) for the Respondent(s) No. 1,2,3
MS. CHETNA SHAH, APP for the Respondent(s) No. 4
==========================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 26/09/2025
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 20.02.2024 passed by the learned 3rd Additional Chief Judicial
Magistrate, Surat (hereinafter referred to as the "learned Trial Court") in
Criminal Case No. 29078/2018, 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).
2. Heard learned advocate Mr. Prem Dave for the applicant and
learned APP Mr. Pranav Dhagat for the respondent State.
NEUTRAL CITATION
R/CR.MA/8535/2024 ORDER DATED: 26/09/2025
undefined
3. Learned advocate Mr. Prem Dave for the applicant submits that the
respondent Nos. 2 and 3 are the partners of respondent No. 1 Firm -Rudra
Developers and the applicant was working as a teacher and she wanted to
purchase a flat, which was being constructed by Rudra Developers. The
applicant and the respondent Nos. 2 and 3 had agreed for the purchase of
Flat No.C-404 for Rs.10,00,000/- and an agreement to sell was executed
between the parties, in which, an amount of Rs.10,000/- was given as the
agreement to sell. Thereafter, the applicant gave an amount of Rs.
4,21,000/- as part payment and as the loan document were to be prepared,
the papers were produced in the bank but as the title of the property was
not clear the loan could not be passed. The applicant approached the
respondent Nos. 2 and 3 to cancel the agreement to sell and a
Memorandum of Understanding (MoU) was executed between them,
wherein cheque No. "000428' dated 01.04.2018 for an amount of
Rs.1,00,000/-, Cheque No. 000429 dated 01.04.2018 for an amount of Rs.
1,000,00/- and Cheque no. 000430 dated 01.04.2018 for Rs. 1,00,000/-
was given. The cheques were deposited by the applicant in her account
with State Bank of India, but the cheques were returned unpaid with the
endorsement "Funds Insufficient". The demand statutory notice was
issued to the respondent Nos. 1 to 3 to which, an evasive reply was given
and thereafter, the respondent Nos. 1 to 3 did not repay the amount within
NEUTRAL CITATION
R/CR.MA/8535/2024 ORDER DATED: 26/09/2025
undefined
the stipulated period, and hence, the applicant filed a criminal complaint
under Section 138 of the NI Act before the Court of the Chief Judicial
Magistrate, Surat, which was registered as Criminal Case No. 29078 of
2018.
3.1 The respondent Nos. 1, 2 and 3 were duly served and appeared
before the learned Trial Court and after their pleas were recorded, the
applicant stepped into the witness-box and produced documents in
support of her case. Learned advocate Mr. P.M.Dave for the applicant
submits that the applicant produced all the documentary evidence
including the copy of the agreement to sell at Exh.15, the bank statement
at Exh. 16, MoU at executed between the parties at Exh. 17 them and
other documents but the learned trial Court did not appreciate the same in
proper perspective and by the impugned judgment and order, was pleased
to acquit the respondent Nos. 1 to 3 from the offence under Section 138
of the NI Act mainly on the ground that the applicant was not able to
prove that the respondent Nos. 2 and 3 had given the cheques and that
they were given towards a legally enforceable debt. Learned advocate for
the applicant submits that the learned trial Court did not appreciate the
documents in proper perspective and the applicant had proved that the
amount due was the legally enforceable due amount which was to be
given by the respondent Nos. 1 to 3. The applicant has a good case on
NEUTRAL CITATION
R/CR.MA/8535/2024 ORDER DATED: 26/09/2025
undefined
merits and hence, the applicant seeking leave to appeal must be granted.
4. Learned advocate Mr. Deepak Khanchandani for the respondent
Nos. 1 to 3 submits that it is on record that the amount was not received
by the respondents No. 2 and 3 and it is the case of the respondent Nos. 2
and 3 that they were pressurized to sign the Memorandum of
Understanding as the applicant had filed a complaint before the police
station and hence the learned trial Court has rightly appreciated the fact
that there was no legally enforceable due to be paid by the respondent
Nos. 1 to 3. The learned trial Court has appreciated all the documents in
proper perspective and hence the application seeking leave to appeal must
be rejected.
5. Learned APP Ms. Chetna Shah for the respondent No 1 - State and
has submitted that learned trial Court has considered the evidence on
record and passed the impugned judgment and order and hence
application may be rejected.
6. Considering the submissions of learned advocates for both the
parties and on perusal of the impugned judgment and order passed by the
learned trial Court as also the paper book produced on record, prima
facie, it appears that the documents have not been properly appreciated in
NEUTRAL CITATION
R/CR.MA/8535/2024 ORDER DATED: 26/09/2025
undefined
proper perspective and hence, the issue requires consideration.
Consequently, the application seeking leave to appeal is granted and
disposed off accordingly.
(S. V. PINTO,J)
VVM
