R/SCR.A/12663/2025 ORDER DATED: 12/09/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 12663 of 2025 ========================================================== SHAKTISINH MAHAVIRSINH VAGHELA Versus STATE OF GUJARAT & ANR. ========================================================== Appearance: MR UMANG R VYAS for MR KULDEEP D VAIDYA(7045) for the Applicant(s) No. 1 MR KM ANTANI, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 12/09/2025 ORAL ORDER [1.0] Though sick note of learned advocate Mr. Kuldeep D. Vaidya for the petitioner is filed, learned advocate Mr. Umag R. Vyas seeks permission to appear on behalf of learned advocate Mr. Kuldeep Vaidya for the petitioner and is permitted. [2.0] By way of present petition under Articles 226 and 227 of the Constitution of India read with Section 528 of the BNSS, the petitioner has sought for the following relief: “(B) Your Lordships may be pleased to issue a writ of certiorari or a writ in nature of certiorari or any other appropriate writ, order or direction to quash and set aside the impugned order dated 11.06.2025 passed below application Exh.21 in Criminal Case No.453/2025 passed by the learned Additional Chief Judicial Magistrate, Palitana, District Bhavnagar (Annexure-D);” [3.0] Learned advocate for the petitioner has submitted that in the complaint the complainant has stated about the details of account as confirmation of the alleged transaction and accepted the said settlement by stating “Ok”. The documents are not produced with the chief examination which are material evidence and without such R/SCR.A/12663/2025 ORDER DATED: 12/09/2025 evidence the petitioner – accused is unable to prove his case and due to this reason he had filed application Exh.21 which came to be dismissed by the learned trial Court. [4.0] Having heard the learned advocate for the petitioner and perusing the impugned order, it appears that the main grievance of the petitioner is that though complainant himself claimed and admitted in his complaint that he is in possession of the screen shots and original calculations and accounts of transactions between the parties, the complaiannt has not produced the same alongwith evidence or list of evidence and for that purpose he had filed application Exh.21. The learned trial Court come to conclusion that petitioner intended to produce some documents i.e. whatsapp photographs from the possession of complainant but no specific detail is given and which specific documents are required to be produced and no any explanation is made. It is needless to say that in the proceeding under Section 138 of the Negotiable Instruments Act, accused has to rebut the statutory presumption under Section 139 of the Negotiable Instruments Act and prior to entering into the defence, the accused has to apply for the same. Further, in absence of any specific document or prior to entering into defence, petitioner – accused filed application Exh.21. It is needless to say that there are number of ways to rebut the presumption under the Evidence Act / Bharatiya Sakshya Adhiniyam and onus always shifts. When accused enters into defence and put specific case and complainant fails then the accused has to face consequences or the Court has ample power to draw adverse inference or by other mode the petitioner – accused has to rebut the presumption including entering into witness box and to examine the witnesses. The petitioner herein prior to entering into defence has filed the application Exh.21 which is premature and R/SCR.A/12663/2025 ORDER DATED: 12/09/2025 learned trial Court has not committed any error in dismissing application Exh.21. [4.1] Further, the orders of trial Court are not amenable to writ jurisdiction under Article 226 of the Constitution of India in view of decision of the Hon’ble Supreme Court in the case of Radhe Shyam vs. Chhabi Nath reported in (2015) 5 SCC 423. Even, this Court does not have roster under Section 482 of the CrPC / section 528 of the BNSS and hence, in view of decision in the case of Pradnya Pranjal Kulkarni vs. State of Maharashtra & Anr. rendered in Petition for Special Leave to Appeal (Cri.) No.13424/2025. Hence, not examined merits under Section 528 of the BNSS. [4.2] So far as exercise of power under Article 227 of the Constitution of India is concerned, the powers under Article 227 of the Constitution are very much limited and as per the law laid down by the Hon’ble Supreme Court in the case of Radhe Shyam vs. Chhabi Nath reported in (2015) 5 SCC 423, wherein in paragraphs 18 and 23, it has been observed as under: “18. Thus, it has been clearly laid down by this Court that an Order of civil court could be challenged under Article 227 and not under Article 226. 23. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.” [4.3] Considering the aforesaid fact, the order of the learned trial Courts could be challenged under Article 227 but not under Article 226 of the Constitution of India. Herein, the petitioner has sought the R/SCR.A/12663/2025 ORDER DATED: 12/09/2025 prayer to quash and set aside the impugned order, which fall under the supervisory jurisdiction of Article 227 of the Constitution of India. Considering the law laid down by the Hon’ble Supreme Court in the case of Radhe Shyam (Supra), the judicial orders of Courts are not amenable to writ jurisdiction under Article 226 of the Constitution and jurisdiction under Article 227 is distinct from the jurisdiction under Article 226 of the Constitution. At this stage it is apposite to refer to the decision of the Hon’ble Supreme Court in the case of M/s. Garment Craft vs. Prakash Chand Goel reported in (2020) 4 SCC 181, wherein in paragraph 77 it is held that High Court does not act as a Court of first appeal while exercising jurisdiction under Article 227 and to re-appreciate, re-weight evidence or fact except error apparent face on the record or perversity in findings. [5.0] In wake of aforesaid discussion, present petition stands dismissed. However, all contentions available to the petitioner are kept open and the learned trial Court shall decide the case on its own merits independently without being influenced by this order. (HASMUKH D. SUTHAR, J.) Ajay Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: AJAY CHANDRAN MENON(HC00939), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 12/09/2025 17:39:02