R/CR.MA/15926/2025 ORDER DATED: 02/09/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 15926 of 2025 In F/CRIMINAL APPEAL NO. 23716 of 2025 ========================================================== DISHITA WELLNESS THRO VIVEK R. GANDHI Versus STATE OF GUJARAT & ORS. ========================================================== Appearance: MR. ADIT V PANCHOLI(14657) for the Applicant(s) No. 1 MS TEJAL A VASHI(2704) 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 : 02/09/2025 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 16.04.2025 passed by the learned Judicial Magistrate First Class, Vadodara (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 27969/2019, 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. Adit Pancholi for the applicant and learned APP Ms. C.M. Shah for the R/CR.MA/15926/2025 ORDER DATED: 02/09/2025 respondent State. 3. Learned advocate Mr. Adit Pancholi for the applicant submits that the applicant and the respondent nos. 2, 3 and 4 had entered into a partnership firm in the name of Dishita Wellness for running of a gym and the respondent nos. 3 and 4 were the working partners but they did not run the gym properly and it was decided that both of them be discontinued from the partnership firm. Accordingly, a deed of Admission cum Retirement of Partnership was executed between the parties on 02.06.2018 which was signed by all the parties, wherein, it was mentioned that respondent nos. 3 and 4 had collected an amount of Rs. 7,50,000/- from some members in their personal capacity and the members were allowed to use the gym and towards that amount, cheque no. 959892 dated 01.04.2019, cheque no. 959893 dated 01.05.2019 and cheque no. 959894 dated 01.06.2019 for Rs. 1,88,750/- each, were issued by the respondent nos. 2, 3 and 4 from their account with IndusInd Bank, Vasna Road, Vadodara Branch. The cheques were deposited by the applicant in his account with IndusInd Bank, Vaghodiya, R/CR.MA/15926/2025 ORDER DATED: 02/09/2025 Vadodara Branch but the cheques returned unpaid with the endorsement “Funds Insufficient”. The demand statutory notice was given towards which the respondent nos. 2, 3 and 4 sent 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, Vadodara which came to be registered as Criminal Case No. 27969/2019. After the respondent nos. 2, 3 and 4 were duly served with the summons and they appeared before the learned Trial Court and their plea was recorded, the applicant produced oral and documentary evidences in support of his case. The applicant deposed on oath at Exh. 5 and produced 13 documentary evidence in support of his case including the deed of Admission cum Retirement of Partnership at Exh. 11. The learned Trial Court appreciated the entire evidence and concluded that the deed was executed between the parties but without appreciating the same properly held that there was no legally enforceable due from the respondent nos. 2, 3 and 4. Learned advocate submits that the R/CR.MA/15926/2025 ORDER DATED: 02/09/2025 applicant had proved by oral and documentary evidence that the amount was legally enforceable due from the respondent nos. 2, 3 and 4 but without appreciating the entire evidence in proper perspective, the learned Trial Court has passed the impugned judgement and order of acquittal and was pleased to acquit the respondent nos. 2, 3 and 4 from the offence under Section 138 of the NI Act. 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. 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 R/CR.MA/15926/2025 ORDER DATED: 02/09/2025 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 02/09/2025 15:53:24