R/CR.MA/10267/2025 ORDER DATED: 07/08/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 10267 of 2025 In F/CRIMINAL APPEAL NO. 20102 of 2025 ========================================================== HITESHBHAI CHHAGANBHAI SOJITRA Versus STATE OF GUJARAT & ANR. ========================================================== Appearance: MR ADITYA A ASTHAVADI(12915) 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 : 07/08/2025 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 17.03.2025 passed by the learned Judicial Magistrate First Class, Vadiya (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 959/2021, 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. Aditya Asthavadi for the applicant and learned APP Ms. C.M. Shah for the respondent State. 3. Learned advocate Mr. Aditya Asthavadi for the R/CR.MA/10267/2025 ORDER DATED: 07/08/2025 applicant submits the applicant and the respondent no. 2 were known to each other and were friends and were residing in the Shiv Sai Residency Society at Bardoli. The respondent no. 2 was in need of some finance and had requested the applicant for an amount of Rs. 5,00,000/- which was given as a hand loan by the applicant on 03.08.2021. Towards the outstanding amount, the respondent no. 2 gave cheque no. 080598 dated 03.09.2021 for Rs. 5,00,000/- from his account with Bank of India, Buhari Branch. The cheque was deposited by the applicant in his account with State Bank of India, Vadiya 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 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 Judicial Magistrate First Class, Vadiya which came to be registered as Criminal Case No. 959/2021. The respondent no. 2 was duly served with the summons and he appeared before the learned Trial R/CR.MA/10267/2025 ORDER DATED: 07/08/2025 Court and after his plea was recorded, the applicant submitted his examination in chief at Exh. 5 and examined one witness - Tusharbhai Vegad at Exh. 43. The applicant also produced six documentary evidences in support of his case and during the cross-examination, no defence as such was raised by the respondent no. 2. Learned advocate submits that except for denial, there was no rebuttal of the presumption during the cross-examination and even though the demand statutory notice was duly served, the respondent no. 2 did not submit any reply to the notice. The entire transaction was in the presence of witness – Tusharbhai Dilipbhai Vegad who has been examined at Exh. 43 before the learned Trial Court. Learned advocate submits that even in his evidence that has come on record, it is proved that the transaction has taken place between the parties. Learned advocate submits that the learned Trial Court did not appreciate the evidence in proper perspective and by the impugned judgement and order, was pleased to acquit the respondent no. 2 from the offence under Section 138 of the NI Act. Learned advocate submits that the R/CR.MA/10267/2025 ORDER DATED: 07/08/2025 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. 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 07/08/2025 15:19:46