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2025 Supreme(Online)(Guj) 8096
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.V. PINTO, J
KRUNAL MAHENDRABHAI BARDOLIWALA – Appellant
Versus
STATE OF GUJARAT – Respondent
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 9252 of 2025 | F/CRIMINAL APPEAL NO. 17609 of 2025
For the Appellants/Petitioners: MR MANAN A SHAH
For the Respondents: MS. C.M. SHAH, APP
The court identified improper consideration of evidence leading to acquittal under Section 138 of the Negotiable Instrument Act.
Headnote:(A) Negotiable Instrument Act, 1881 - Section 138 - Leave to appeal against acquittal - Applicant granted leave to appeal as evidence not considered properly - Proper appreciation of evidence essential for determining guilt in cheque dishonor cases. (Paras 3 and 5)
(B) Acquittal - Standard of Proof - The court noted discrepancies in the trial court's assessment of evidence and deemed the acquittal as possibly unjust.
Facts of the case:
The applicant alleges that the respondent issued cheques for a hand loan which bounced due to insufficient funds, leading to a criminal complaint under Section 138 of the NI Act. Evidence was presented, but the trial court acquitted the respondent.
Findings of Court:
The court found that the trial court may not have properly appreciated the documentation and evidence, prompting the decision to grant leave to appeal.
Issues: Whether the trial court erred in its assessment of the merits of the evidence leading to acquittal under Section 138 of the NI Act.
Ratio Decidendi: The court determined that prima facie, the trial court's handling of documents was insufficient, warranting further inspection under appeal.
Result: Application seeking leave to appeal granted.
| Table of Content |
|---|
| 1. application filed for leave to appeal against acquittal in cheque bounce case. (Para 1 , 3) |
| 2. court observed possible misapprehension of evidence by trial court leading to acquittal. (Para 4 , 5) |
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 04.03.2025 passed by the learned Judicial Magistrate First Class, Surat (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 2073/2022, 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. Manan Shah for the applicant and learned APP Ms. C.M. Shah for the respondent State.
3. Learned advocate Mr. Manan Shah for the applicant submits that the applicant and the respondent no. 2 were known to each other and were friends and the respondent no. 2 was in need of some finance and the applicant had given an amount of Rs. 4,50,000/- as a hand loan to the respondent no. 2 towards which the respondent no. 2 had issued cheque no. 000061 dated 25.10.2021 for Rs. 3,00,000/- and cheque no. 000062 dated 01.11.2021 for Rs. 1,50,000/- from his account with Surat National Cooperative Bank Ltd, Ghoddod Road, Surat Branch. The cheques were deposited by the applicant in his account with Canara Bank, Majura Gate, Surat Branch but the cheques returned unpaid with the endorsement “Funds Insufficient”. The demand statutory notice was given which was duly served to the respondent no. 2 but the respondent no. 2 gave 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, Surat which came to be registered as Criminal Case No. 2073/2022. The respondent no. 2 was duly served with the summons and he appeared before the learned Trial Court and after his plea was recorded at Exh. 6, the applicant stepped into the witness box and was cross-examined at Exh. 4 and the applicant examined two witnesses on his behalf. The applicant also produced oral and documentary evidences in support of his case and after the closing pursis was filed by the applicant, the respondent no. 2 in his further statement recorded under Section 313 of Code of Criminal Procedure, 1973 denied the evidence but did not step into the witness box or examine any witness. 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. Learned advocate submits that from the oral and documentary evidence, the applicant had proved that the amount was given as a hand loan towards which the cheques in question were issued by the respondent no.
2 and during the cross-examination, the respondent no. 2 could not rebut the presumption but the learned Trial Court did not consider the evidence in proper perspective and even though the applicant had proved that the cheques in questions were issued towards the legally outstanding amount, the impugned judgement and order has been passed. Learned advocate submits that even in the reply to the notice, the respondent no. 2 did not explain as to how the cheques in question came in the possession of the applicant and even in the further statement, there was no explanation for the same. 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
