R/CR.MA/9252/2025 ORDER DATED: 01/09/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 9252 of 2025 In F/CRIMINAL APPEAL NO. 17609 of 2025 ========================================================== KRUNAL MAHENDRABHAI BARDOLIWALA Versus STATE OF GUJARAT & ANR. ========================================================== Appearance: MR MANAN A SHAH(5412) 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 : 01/09/2025 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 04.03.2025 passed by the learned Judicial Magistrate First Class, Surat (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 2073/2022, 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. Manan Shah for the R/CR.MA/9252/2025 ORDER DATED: 01/09/2025 applicant and learned APP Ms. C.M. Shah for the respondent State. 3. Learned advocate Mr. Manan Shah for the applicant submits that the applicant and the respondent no. 2 were known to each other and were friends and the respondent no. 2 was in need of some finance and the applicant had given an amount of Rs. 4,50,000/- as a hand loan to the respondent no. 2 towards which the respondent no. 2 had issued cheque no. 000061 dated 25.10.2021 for Rs. 3,00,000/- and cheque no. 000062 dated 01.11.2021 for Rs. 1,50,000/- from his account with Surat National Cooperative Bank Ltd, Ghoddod Road, Surat Branch. The cheques were deposited by the applicant in his account with Canara Bank, Majura Gate, Surat Branch but the cheques 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 gave 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 R/CR.MA/9252/2025 ORDER DATED: 01/09/2025 of Chief Judicial Magistrate, Surat which came to be registered as Criminal Case No. 2073/2022. 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. 6, the applicant stepped into the witness box and was cross-examined at Exh. 4 and the applicant examined two witnesses on his behalf. The applicant also produced oral and documentary evidences in support of his case and after the closing pursis was filed by the applicant, the respondent no. 2 in his further statement recorded under Section 313 of Code of Criminal Procedure, 1973 denied the evidence but did not step into the witness box or examine any witness. 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 as a hand loan towards which the cheques in question were issued by the respondent no. Page 3 of 5 R/CR.MA/9252/2025 ORDER DATED: 01/09/2025 2 and during the cross-examination, the respondent no. 2 could not rebut the presumption but the learned Trial Court did not consider the evidence in proper perspective and even though the applicant had proved that the cheques in questions were issued towards the legally outstanding amount, the impugned judgement and order has been passed. Learned advocate submits that even in the reply to the notice, the respondent no. 2 did not explain as to how the cheques in question came in the possession of the applicant and even in the further statement, there was no explanation for the same. 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 of acquittal considering the settled principles of law and hence, the leave to appeal may not be granted. Page 4 of 5 R/CR.MA/9252/2025 ORDER DATED: 01/09/2025 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 01/09/2025 13:12:09