IN THE HIGH COURT OF GUAJARAT AT AHMEDABAD

DISTRICT: MEHSANA

CRIMINAL APPEAL NO. OF 2023

PANDYA SUNILKUMAR RAMANLAL

Male, Aged: ___, Male,
Occ.: Business,
Residing at: House No. 25,
Marutinandan Bunglows,
Visnagar Road, Vijapur,
Mehsana.
…..Appellant
(Original Complainant)
VERSUS

1. THE STATE OF GUJARAT

(Copy to be served through the
Office of Public Prosecutor,
Gujarat High Court, Sola,
Ahmedabad).

2. PATEL SANJAYKUMAR BALDEVBHAI

Aged: , Male,
Residing at: H/501,
Shyam Shukan Residency,
Bhaijipura Patiya, Kudasan,
Gandhinagar.
.....Respondents
(Respondent No.2 Original Accused)
 CRIMINAL APPEAL UNDER SECTION 378 OF

CRIMINAL PROCEDURE CODE FOR

AGAINTS AQUITTAL ORDER IN CRIMINAL

CASE NO. 1278 OF 2019 ON DATED

04.03.2023, PASSED BY THE LD. 2nd

ADDITIONAL JUDICIAL MEGISTRATE

FIRST CLASS, VIJAPUR FOR OFFENCE U/S

138 OF N.I.ACT.

TO,

THE HON’BLE THE CHIEF JUSTICE AND

OTHER HON’BLE JUDGES OF THE HIGH

COURT OF GUJARAT AT AHMEDABAD.

The humble appeal of the appellant

above named:

MOST RESPECTFULLY SHEWETH THAT:

1. The appellant is the original complainant of Criminal

Case No. 1278 of 2019 instituted against Res. no.2 for the

offence punishable under sec.138 of the N.I. Act, before

Ld. Additional Chief Judicial Magistrate First Class,

Vijapur, Dist. Mehsana, wherein Ld. Trial court as

pronounce the judgement dated on dated 04.03.2023,

and ordered to acquitted the respondent no.2 from the

offence punishable u/s. 138 of the N.I. Act. Copy of the

 judgment of Criminal case No. 32019 of 2013 decided on

07.10.2021 is attached herewith as Annexure- A.

Being aggrieved by such judgment and acquittal order

passed by Ld. Trial court in Criminal Case no. 1278 of

2019, on dated 04.03.2023 present appellant has been

preferred this appeal against present respondent no.2.

2. The short facts giving rise to the filing of the present

appeal is to be summarized as under:

It is submitted that the complainant is residing at

address shown in title and he is Businessman, and

complainant had good friendly relation with Res. no.2.

Further it is submitted that pursuant to that above

mentioned Friendship relation accused/Res. no.2 had

demanded the amount of Rs.20,00,000/- from the

appellant for social and business purpose, and

accordingly the appellant gave Rs. 11,50,000/- to the Res.

no.2.

It is submitted that against such money the

Respondent no.2 issued one cheque of Rs. 11,50,000/-

from his account maintained by him with Bank of India,

Kudasan branch vide Cheque no. 009644 dated

10.06.2019 with assurance that such cheque will

honored as an when it present in the bank.

 It is submitted that the appellant had deposited

such cheque in his account maintained by him with Bank

of Baroda, Vijapur Branch on dated 10.06.2019, which

was returned with endorsement of “Fund Insufficient” in

the account of Res. no.2 on dated 11.06.2019, without

honored.

It is submitted that the appellant contacted to the

Res. no.2, at that time the Res. no.2 convey to the

appellant that re-deposit the cheque after one month, and

hence again the appellant had deposited such cheque in

his account, which was again returned with endorsement

of “Fund Insufficient” in the account of Res. no.2 on dated

25.07.2019, without honored, and hence the appellant

again contacted to the Res. no.2, but the Res. no.2 gave

improper reason to the appellant.

It is submitted after returning re-deposited cheque

appellant had issued notice u/s 138 of the N.I. Act to the

accused/Res.no.2 through the advocate on dated

17.08.2019 on the address of Res. no. 2 out of such the

notice was served as Respondent no.2 had served on

dated 26.08.2019, even though the respondent no.2 failed

to given money and given vague and false reply

05.09.2019, thus the Respondent no.2 has committed the

offence punishable u/s 138 of the N.I. Act, and therefore

 the appellant has filed the complaint against Respondent

no.2 before Ld. Trial court.

3. It is submitted that order under Section-204 of Criminal

Procedure Code was passed and thereafter, upon service

of summons, the respondent-accused appeared through

his advocate, the plea was recorded. It is submitted that

in support of the case of the appellant, he has given her

oral evidence. Further the appellant also produced

documentary evidence in form of Original Cheque, Bank

Written memo, Bank Slip, Notice, Postal Evidence etc.

and thereafter, purshis was submitted by Appellant about

closure of the evidence. It is submitted that statement

under Section 313 of Criminal Procedure Code came to be

recorded for the accused in which he has taken a defense

that there was no due amount and no mentioned

transaction was happened with the complainant, and

cheque was misused by appellant.

It is submitted that in such the criminal complaint

the Ld. 2nd Additional Judicial Magistrate, Vijapur

pleased to passed an order of an acquittal by order dated

04.03.2023 and acquitted the respondent no.2 from the

offence punishable u/s 138 of N.I. Act.

Being aggrieved and dissatisfied of the impugned

acquittal order passed by the Ld. 2nd Additional Judicial

 Magistrate, Vijapur in criminal case no. 1278 of 2019 on

dated 04.03.2023. The applicant therefore, preferred this

appeal on the following amongst other grounds which

may be urged at the time of arguing the appeal.

4. GROUNDS

a) The learned court has committed an error of law by

passing the order of acquittal and also the aforesaid

order is illegal, Perverse and against settles principal

of law.

b) It is submitted that as per the decision of the hon’ble

supreme court in case of Rohit bhai Jivanlal patel

vs. The state of Gujarat in Cr.Appeal. no. 508/2019

decided on dated 15th, march 2019 “ Needless to

reiterate that the result of such presumption is that

existence of a legally enforceable debt is to presumed

in favour of the complainant. When such a

presumption is drawn, the factors relating to the

want of documentary evidence in the form of receipts

or accounts or want of evidence as regards sources

of fund were not or relevant consideration while

examining if the accused has been able to rebut the

presumption or not. The other observations as

regards any variance in the statement of the

complainant and witness; or want of knowledge

 about dates and other particulars of the cheques;

had been of irrelevant factors for consideration of a

probable defence of the appellant. “

c) It is submitted that Particularly, in this case it is

admitted fact that such cheque was of the account

of accused and signature of accused on such cheque

is established as well as such facts are admitted by

accused himself in his deposition of oath, therefore,

this is clear case of presumption of u/s.139 of

N.I.Act, without any further evidence on behalf of

complainant and in such a circumstances and as

per the settled law, the facts of cross examination of

complainant is become irrelevant and/or not much

material. It is clearly proves that the respondent

failed to rebut such presumption u/s 139 of N. I. Act

even though ld. Trail court is completely failed to

appreciate such all the factual and legal aspect in

proper manner, therefore, such all the findings of

Ld. Trail court in this regard and order passed to

acquit the accused is illegal and perverse and when

on the basis of presumption it is established that

accused is required to punished for the offence

punishable u/s.138 of N. I. Act. Even though Ld.

Trail court has Wrongly and erroneously acquitted

accused instead of convict him in such offence.

d) It is submitted that no doubt the Ld. court has noted

all the facts and substance of evidence came on

record along with sub and substance of so many

decisions but at the same time on the perusal of

such under challenged judgement its clearly

appears that Ld. court is failed to appreciate and

evaluate such all the facts, evidence, as well as

relevant proposition of law in correct and proper

manner, therefore acquittal judgment passed by Ld.

court is erroneous, Illegal and perverse.

e) As per the settle law relating to sec. 139 of N.I .Act,

court is bound to presume that cheque was issued

by accused to meet with his debt & liability towards

the complainant, especially when it is not in

dispute that the disputed cheque was cheque of

account maintained by accused with his bank, in

such a circumstances it is on accused to rebut such

presumption, with sufficient evidence or

circumstances put on record.

f) It is submitted that in the light of legal ratio of

decision of Hon’ble S.C in earlier noted case of Rohit

bhai Jivanlal patel vs. The state of Gujarat in

Cr.Appeal. no. 508/2019 decided on dated 15th,

march 2019, looking to the entire record it is

appears that defence raised by the accused during

 the cross examination of the complainant as well as

documentary evidence produced by accused are not

sufficient to rebut such presumption, even though

Ld. trial court has wrongly and erroneously accept

such all the disputes and evidence as sufficient to

rebut presumption u/s 139 of N.I. Act, therefore,

the interference of this Hon’ble court is required.

g) All the findings of Ld. trial court are not correct and

legal and the interfere with such finding is required

in the interest of the justice. The evidence produced

by complainant are sufficient to convict the accused

for the offence punishable U/s. 138 of NI ACT, but

even though on the basis of wrong & illegal findings

Ld. court has wrongly acquitted the accused

therefore the judgment of Ld. court is illegal &

pervers.

h) The learned Judge has committed a serious error of

law in not appreciating the authority cited before

him in its true and perspective manner and if the

same is appreciated, the order impugned could not

have been passed. The judgment of Ld. court is also

against the facts evidence & relevant proposition of

 law therefore the interference of Hon’ble court is

require.

5. The appellant has not filed any other application or

petition or appeal with regard to subject matter of

present petition before any court of law in India

including the Hon’ble Supreme Court of India.

PRAYERS

6. The applicant therefore most respectfully prays that:

(A) That the Hon’ble Court may be pleased to admit this

appeal.

(B) That the Hon’ble Court may be pleased to allow this

appeal by quashing and setting aside the judgment

and the order of acquittal passed by the Ld. Learned

2ND Additional Judicial Magistrate First Class,

Vijapur in Criminal Case No. 1278 of 2019 decided

on 04.03.2023 and also be pleased to convict the

respondent no.2 i.e accused for the offence

punishable under the sec.138 of Negotiable

Instruments Act in the facts and circumstances of

the present case.

(C) This Hon’ble court may be pleased dispense the

affidavit in present criminal appeal of the appellant

as the leave to appeal is already affidavit by the

appellant.
(D) This Hon’ble Court may be pleased to pass any other

and further order in the facts and circumstances of

the case and in the interest of justice.

AND FOR THIS ACT OF KINDNESS AND JUSTICE, THE

APPELLANT SHALL AS IN DUTY BOUND FOR EVER

PRAY.

Place: Ahmedabad ASHISH M.DAGLI

Date: / /2023 Advocate for the Appellant
IN THE HIGH COURT OF GUAJARAT AT AHMEDABAD

DISTRICT: MEHSANA

CRIMINAL APPEAL NO. OF 2023

PANDYA SUNILKUMAR RAMANLAL

….Petitioner

Versus
THE STATE OF GUJARAT AND OTHERS
….Respondent
Index

Sr.no Annexures Page

no.

--- Memo

A Copy of the judgment of

Criminal case No. 1278 of
2019 decided on 04.03.2023
IN THE HIGH COURT OF GUAJARAT AT AHMEDABAD

DISTRICT: MEHSANA

CRIMINAL APPEAL NO. OF 2023

PANDYA SUNILKUMAR RAMANLAL

….Petitioner

Versus
THE STATE OF GUJARAT AND OTHERS
….Respondent
Event

1. The appellant is the original complainant of Criminal

Case No. 1278 of 2019 instituted as the cheque given by

the respondent – accused was bounced and in spite of

giving legal notice, the amount is not paid and therefore,

the proceedings under Section 138 of Negotiable

Instruments Act came to be initiated. Wherein the Ld. 2ND

Additional Judicial Magistrate First Class, Vijapur

pleased to passed an order to acquit the respondent no.2

by order dated 04.03.2023.

2. The learned court has committed an error of law by

passing the order of acquittal and also the aforesaid order

is illegal, Perverse and against settles principal of law.

3. Hence this Appeal.