DINESHBHAI AMRABHAI PATEL vs STATE OF GUJARAT

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2025 Supreme(GUJ) 935

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 5450 of
2025 In F/CRIMINAL APPEAL NO. 9528 of 2025 ================================================================
DINESHBHAI AMRABHAI PATEL Versus STATE OF GUJARAT & ANR.
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Appearance:
MR YASH H JOSHI(6495) for the Applicant(s) No. 1 MS. JIRGA JHAVERI, APP for the Respondent(s) No. 1 ================================================================
CORAM: HONOURABLE MS. JUSTICE S.V. PINTO Date : 21/03/2025

Important Points

The court may grant leave to appeal against acquittal if procedural delays and the efforts of the applicant to pursue the case are significant.

Subject

Criminal Law - Negotiable Instruments Act

Headnote

(A) Negotiable Instruments Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Section 256 - Leave to appeal against acquittal - The learned Trial Court acquitted the respondent from the offence under Section 138 of the NI Act due to non-appearance of the respondent despite issuance of non-bailable warrants - The applicant contended that the case was delayed due to the Court being vacant and the respondent's avoidance of service - The court found merit in the applicant's submissions and granted leave to appeal. (Paras 1, 3, 5)

(B) Acquittal - The court emphasized that acquittal can be challenged if there are sufficient grounds and procedural delays are taken into account - The applicant's efforts to serve warrants were noted as significant in the context of the case. (Paras 3, 5)

Facts of the case:
The applicant filed a complaint under Section 138 of the NI Act in 2007, but the case faced delays due to the Court's vacancy and the respondent's non-appearance, leading to the dismissal of the case by the Trial Court on 09.01.2025.

Findings of Court:
The court acknowledged the applicant's efforts to pursue the case and the procedural delays that affected the trial, leading to the decision to grant leave to appeal.

Issues: The main issues included the validity of the acquittal based on the respondent's non-appearance and the procedural delays in the trial.

Ratio Decidendi: The court ruled that the applicant's consistent efforts to pursue the case and the circumstances surrounding the delays warranted a reconsideration of the acquittal, thus allowing the appeal.

Result: Application for leave to appeal granted.

Petitioner Advocates:MR YASH H JOSHI(6495) ,Respondent Advocate: PUBLIC PROSECUTOR(2)

ORDER :

1. The present application is filed by the applicant seeking leave to appeal against the judgment and order dated 09.01.2025 passed by the learned Chief Judicial Magistrate First Class, Ahmedabad City (hereinafter referred to as the “learned Trial Court”) in Criminal Case No.3800526 of 2015, whereby the learned Trial Court acquitted the respondent No.2 from the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the ‘NI Act’).

2. Heard learned advocate Mr. Yash Joshi for the applicant and learned APP Ms. Jirga Jhaveri for the respondent No.1 – State.

3. Learned advocate Mr. Yash Joshi for the applicant submits that the applicant had filed the complaint under Section 138 of the NI Act before the learned Chief Judicial Magistrate First Class, Ahmedabad City on 14/02/2007 and thereafter, the respondent No. 2 was served with the summons and did not appear and and for long time, the Court was vacant and the case being transferred from one to another Court, which is reflected in the Rojkam. The Rojkam for the year 2016, 2017 would show that the Trial in the matter could not proceed as the Court was vacant and the case was not allotted to any other Court. Thereafter, the parties had appeared and the evidence of the applicant was on record and the matter was pending for cross-examination of the applicant and the documentary evidence were also exhibited at Exhs. 14 to 25. The respondent No. 2 was not appearing and non-bailable warrants were issued and the respondent No. 2 succeeded in avoiding service of warrants and did not appear before learned Trial Court. The applicant had made all efforts to get the non-bailable warrants served to the respondent No. 2 but the efforts were not successful and by the order dated 09.01.2025, the learned 28^th Additional Chief Judicial Magistrate First Class, Ahmedabad was pleased to pass the impugned order under Section 256 of the Code of Criminal Procedure and dismissed the case of the applicant. Learned advocate for the applicant submits in light of the decisions of this Hon’ble Court in the case of Sureshchandra Chandulal Patni Vs Natwarlal Keshavlal Patni and Anr. reported in (1992) 1 GLR 626 and in the case of State of Gujarat Vs. Keshavram Shivram Devmurari and Anr. reported in (1997) 18 GLR 524, the impugned judgment and order is required to be quashed and set aside. Learned advocate for the applicant submits that the the applicant has good case on merits and and hence the application for leave to appeal must be granted.

4. Learned APP Ms. Jhaveri for the respondent No.1 - State submits that necessary order may be passed perusing the paper book as also the copy of the rojkam on record.

5. Considering the submissions of the learned advocate for the applicant and on perusal of the copy of the rojkam, the submission of learned advocate for the applicant deserves consideration and the application for leave to appeal is required to be granted.

6. In the peculiar facts and circumstances of the case in the considered opinion of this Court the application deserves to be allowed and is disposed off accordingly.