R/CR.MA/21844/2024 ORDER DATED: 04/08/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 21844 of 2024 In F/CRIMINAL APPEAL NO. 40653 of 2024 ========================================================== CHANDRABAHADUR RAMBARAN PRAJAPATI Versus STATE OF GUJARAT & ANR. ========================================================== Appearance: MR. RAAJEN D JADHAV(10026) for the Applicant(s) No. 1 MR. ROHAN SHAH, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MS. JUSTICE S.V. PINTO Date : 04/08/2025 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 03.09.2024 passed by the learned 15th Additional Chief Judicial Magistrate, Surat (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 9426/2022, 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. Raajen Jadhav for the applicant and learned APP Mr. Rohan Shah for the R/CR.MA/21844/2024 ORDER DATED: 04/08/2025 respondent State. 3. Learned advocate Mr. Raajen Jadhav for the applicant submits that the applicant is a Tailor and is also doing the business of land commission. The applicant and the respondent no. 2 were known to each other and as the respondent no. 2 wanted to purchase a shop in the year 2016 and due to their acquaintances, the respondent no. 2 had borrowed an amount of Rs. 5,00,000/- in the month of July 2021 to purchase a house and the same was advanced by the applicant. The amount was to be repaid and towards the same, the respondent no. 2 issued cheque no. 059309 dated 18.12.2018 from his account with ICICI Bank, City Light Branch, Surat. The cheque was deposited by the applicant in his account with Bank of Baroda, Dumbhala Branch but the cheque returned unpaid with the endorsement “Payment Stopped by Drawer”. The demand statutory notice was given 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 Chief Judicial Magistrate, Surat R/CR.MA/21844/2024 ORDER DATED: 04/08/2025 which came to be registered as Criminal Case No. 9426/2022. The respondent no. 2 was duly served with the summons and he appeared before the learned Trial Court and after his plea was recorded, the applicant produced the oral and documentary evidence on record. 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 mainly on the ground that the applicant did not have the financial capacity to advance the amount of Rs. 5,00,000/- to the respondent no. 2. Learned advocate submits that the applicant had produced his Income Tax Returns for the assessment year 2021-2022 at Exh. 24 and the Income Tax Returns for the assessment year 2022-2023 at Exh. 25 and had filed the other documents but the same were not considered by the learned Trial Court. Learned advocate further submits that the respondent no. 2 had filed a reply to the demand statutory notice which was also produced on record at Exh. 18, wherein, the respondent no. 2 stated that R/CR.MA/21844/2024 ORDER DATED: 04/08/2025 the folder containing certain documents including the cheque in question were snatched by one Nainaben Nagendrabhai Kondi and a Criminal Case relating to the offence against an unknown female was filed on 12.10.2021 at Umra Police Station but no such evidence was brought on record. Learned advocate submits that the copy of the FIR regarding the incident has not been produced on record and the said Nainaben Nagendrabhai Kondi has not been examined before the learned Trial Court. Learned advocate submits that the applicant has a good case on merits and the learned Trial Court has not appreciated the evidence in proper perspective and hence, the application seeking leave to appeal must be granted. 4. Learned APP Mr. Rohan 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/21844/2024 ORDER DATED: 04/08/2025 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 04/08/2025 17:21:11