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HIGH COURT OF GUJARAT
SVP
SHANIRAJ RAMESHCHANDRA MALAVIYA – Appellant
Versus
RASIKBHAI BHAVANBHAI KANPARIYA – Respondent
ORDER :
1. The present application is filed by the applicant seeking leave to appeal against the judgment and order dated 18.02.2025 passed by the learned 2nd Additional Chief Judicial Magistrate, First Class, Amreli in Criminal Case No. 1157 of 2022, 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. Nishith P Acharya for the applicant and learned APP Ms. Jirga Jhaveri for the respondent No.2 – State.
3. Learned advocate for the applicant submits that the applicant is doing the business of the marble and stones in the name of Shivdhara Marbles which is a partnership firm and the wife of the applicant is one of the partner of the firm. The respondent No. 2 had purchased kota-stone, granite and marble worth Rs.4,28,281/- on 09.04.2022 from the applicant and the respondent No. 2 had paid an amount of Rs.28,281/- in cash and given cheque No. 13879 dated 11.04.2022 for Rs.4,00,000/- from his account with Bank of Baroda Amreli Branch. The cheque was deposited by the applicant in his account, and it returned unpaid with the endorsement “Fun
Authority from a partner is necessary to file a complaint under Section 138 of the NI Act; however, acquittal based solely on lack of authority despite proving other elements may warrant appeal.
The court emphasized the necessity for proper evaluation of evidence in cases involving acquittal under the Negotiable Instrument Act.
There is a presumption under Section 139 of the N.I.Act that there exists a legally enforceable debt or liability.
The burden of proof lies on the complainant to establish the case beyond reasonable doubt in a complaint under Section 138 of the NI Act.
The court emphasized the necessity for proper appreciation of evidence and documents in cases involving cheque dishonor under Section 138 of the NI Act.
The trial Court's failure to consider critical evidence led to the acquittal being set aside and the case remanded for fresh consideration.
The prosecution under Section 138 of the NI Act by an unregistered firm is valid, and the authority of a partner to file a complaint is upheld, emphasizing the importance of compensatory justice.
The obligation of partners to issue public notice of firm dissolution as per Section 45 and 72 of the Indian Partnership Act,1932, and the need to examine the substance of the allegations to fulfill ....
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