R/CR.MA/5667/2025 ORDER DATED: 30/09/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 5667 of 2025 In F/CRIMINAL APPEAL NO. 9751 of 2025 ========================================================== RANCHHODBHAI NAGARBHAI GAMBHAVA Versus STATE OF GUJARAT & ANR. ========================================================== Appearance: MR PARESH A. PATEL(5456) 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 : 30/09/2025 ORAL ORDER 1. The present application is filed by the applicant – original complainant seeking leave to file an appeal against the judgement and order dated 30.12.2024 passed by the learned 3rd Additional Judicial Magistrate First Class, Banaskantha at Palanpur (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 1055/2023, 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. Paresh Patel for the R/CR.MA/5667/2025 ORDER DATED: 30/09/2025 applicant and learned APP Ms. C.M. Shah for the respondent State. 3. Learned advocate Mr. Paresh Patel for the applicant submits that the applicant and the respondent no. 2 were known to each other and the applicant had advanced an amount of Rs. 5,00,000/- and thereafter, a further amount of Rs. 1,00,000/- to the respondent no. 2. Towards the outstanding amount, the respondent no. 2 issued cheque no. 025595 dated 03.10.2023 for Rs. 6,00,000/- from his account with Union Bank of India, Deesa Branch. The cheque was deposited by the applicant in his account with The Banaskantha Mercantile Cooperative Bank Ltd., New Bus Port, Palanpur Branch but the cheque returned unpaid with the endorsement “Funds Insufficient”. The demand statutory notice was given which was duly served to the respondent no. 2 but the respondent no. 2 send an evasive reply and did not repay the amount within the stipulated period and hence, the applicant filed the complaint under Section 138 of the NI Act before the Court of Chief Judicial Magistrate, Banaskantha at Palanpur which came to be R/CR.MA/5667/2025 ORDER DATED: 30/09/2025 registered as Criminal Case No. 1055/2023. The respondent no. 2 was duly served with the summons and he appeared before the learned Trial Court and after his plea was recorded at Exh. 7, the applicant submitted his affidavit of examination in chief at Exh. 4 and produced 8 documentary evidence in support of his case and proved that the cheque in question was issued towards the legally enforceable amount due from the respondent no. 2. After the closing pursis was filed by the applicant, the further statement of the respondent no. 2 was recorded under Section 313 of Code of Criminal Procedure, 1973, wherein, the respondent no. 2 merely stated that the cheque given as a security was misused by the applicant. After the arguments of learned advocates for both the parties were heard, by the impugned judgement and order, the learned Trial Court was pleased to acquit the respondent no. 2 from the offence under Section 138 of the NI Act. Learned advocate submits that from the oral and documentary evidence, the applicant had proved that the amount was given and had also proved his financial capacity by submitting his statement of account from his R/CR.MA/5667/2025 ORDER DATED: 30/09/2025 account with Union Bank of India which showed that the applicant had sufficient amount in his account and also his income tax returns wherein it was shown that the outstanding amount was shown in the income tax returns at Exhs. 21 and 22 respectively. Learned advocate submits that even though the applicant had proved by oral and documentary evidences that the cheque in question was issued for the legally enforceable due amount and all the ingredients of Section 138 of the NI Act were duly proved, the learned Trial Court merely on the ground that the applicant has not mentioned for what reason the further amount of Rs. 1,00,000/- was given, has passed the impugned judgement and order of acquittal. Learned advocate submits that the applicant has a good case on merits and the application seeking leave to appeal must be granted. 4. Learned APP Ms. C.M. Shah for the respondent State has submitted that the learned Trial Court has considered all the documents produced by the applicant and has also considered the evidence and has passed the impugned order R/CR.MA/5667/2025 ORDER DATED: 30/09/2025 of acquittal considering the settled principles of law and hence, the leave to appeal may not be granted. 5. Considering the submissions of learned advocate for the applicant as also on perusal of the paper book on record and the judgement and order of acquittal, prima facie, it appears that the documents have not been properly appreciated in proper perspective. In the peculiar facts and circumstances of the case in the considered opinion of this Court the application deserves to be considered. Consequently, the application seeking leave to appeal is granted and disposed off accordingly. (S. V. PINTO,J) VASIM S. SAIYED Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: VASIM SHABBIR SAIYED(HC01902), PRIVATE SECRETARY, at High Court of Gujarat on 30/09/2025 17:30:16