Gujarat High Court
Natwarlal Patel S/O Samubhai vs Mahendra Dhanjibhai Patel on 11 April, 2025
NEUTRAL CITATION
R/CR.MA/7279/2025 ORDER DATED: 11/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 7279 of 2025
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 6247 of 2025
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NATWARLAL PATEL S/O SAMUBHAI
Versus
MAHENDRA DHANJIBHAI PATEL & ANR.
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Appearance:
MR PREM D DAVE(10958) for the Applicant(s) No. 1
MS DHWANI TRIPATHI, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 11/04/2025
ORAL ORDER
1. The present application is filed by the applicant –
original complainant under Section 378(4) of the Code of Criminal
Procedure, 1973 seeking leave to file an appeal against the order
dated 14.10.2024 passed below Exh.1 by the learned Judicial
Magistrate First Class, (First Court), Surat (hereinafter referred to
as the “learned Trial Court”) in Criminal Case No. 20033 of 2010,
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 N.I.Act” for short).
2. Learned advocate Mr.Prem D. Dave for the applicant
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NEUTRAL CITATION
R/CR.MA/7279/2025 ORDER DATED: 11/04/2025
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submits that the applicant and the respondent No.1 were known to
each other and the applicant gave an amount of Rs.5,00,000/- to
the respondent No.1, towards which, the respondent No.1 gave
cheque No. 239947 dated 21.09.2009 of his account with the HDFC
Bank, Surat Branch. The cheque was deposited by the applicant in
his account and the said cheque returned unpaid with the
endorsement “Account Closed”. The demand statutory notice was
given, which was refused by the respondent No.1 and the amount
was not paid within stipulated time, and hence, the applicant filed
the complaint under Section 138 of N.I.Act before the Court of
learned Chief Judicial Magistrate, Surat, which culminated into
Criminal Case No.20033 of 2010. The respondent No.1 was duly
served with the summons and after the respondent No.1 appeared
before the learned Trial Court, the plea of the applicant was
recorded at Exh.6 and evidence including the affidavit of
examination-in-chief of the applicant was filed on record and all
the necessary documents were produced by the applicant which
were exhibited. The respondent No.1 did not regularly appear
before the learned Trial Court and did not cross-examine the
applicant, and hence, on a number of occasions, bailable and non-
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NEUTRAL CITATION
R/CR.MA/7279/2025 ORDER DATED: 11/04/2025
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bailable warrants came to be issued. Learned advocate for the
applicant submits that if the rojkam is perused, it appears that for
a long time, the respondent No.1 was successful in avoiding the
service of bailable and non-bailable warrants issued against him,
and during this time, the matter was transferred from one Court to
another Court. The applicant was present on a number of
occasions and on 14.10.2024, the learned Chief Judicial Magistrate,
First Class, Surat was pleased to pass the impugned order and
dismiss the complaint under Section 256 of the Code of Criminal
Procedure, 1973. Learned advocate submits that the learned Trial
Court did not consider that the affidavit of examination-in-chief
and other documentary evidences were already on record and
duly exhibited and without considering the same, has passed the
impugned order, which is erroneous. Learned advocate submits
that the applicant has a good case on merits and the application for
leave to appeal may be granted.
3. Learned APP Ms. Dhwani Tripathi for the respondent-
State has submitted that necessary orders may be passed after
perusal of the copy of the rojkam.
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NEUTRAL CITATION
R/CR.MA/7279/2025 ORDER DATED: 11/04/2025
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4. Considering the submissions of learned advocate for
the applicant and on perusal of the copy of the rojkaam produced
by the learned advocate for the applicant, prima facie, it appears
that the matter was filed in the year 2010 and the respondent No.1
was successful in avoiding the service of bailable and non-bailable
warrants for a long time. During this period, the matter was
transferred from one Court to another Court and the rojkam
reflects that the applicant was present on a number of occasions
before the learned Trial Court and was not cross-examined by the
respondent No.1. The entire evidence of the applicant was on
record and the same has not been appreciated by the learned Trial
Court, and hence, 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 for leave
to appeal is granted and disposed off accordingly.
(S. V. PINTO,J)
F.S.KAZI
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