JUDGMENT :

1. Appellant - original complainant has preferred this appeal under section 378 of the Code of Criminal Procedure, 1973 and challenged the judgment and order of acquittal passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Vadodara on 21.10.2010 allowing Criminal Appeal No.104 of 2009 and acquitting the respondent accused against the judgment and order of conviction passed by the learned Additional Senior Civil Judge and JMFC, Vadodara on 29.9.2009 in Criminal Case No.8116 of 2007 convicting the respondent accused for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short "the Act").

2. According to the appellant complainant, the respondent accused was his friend and as he was in need of finance, obtained in all Rs. 4,90,000/- as hand loan on different times from him. The respondent accused gave cheque No.223345 dated 3.3.2007 of Rs. 4,90,000/- drawn on Indusland Bank Limited, Varasia Ring Road, Vadodara towards discharge of his liability. On presenting cheque in the Bank on 13.3.2007, the cheque has been returned unpaid with the endorsement "Account Closed" and he was informed about the return of cheque unpaid on 15.3.2007 by the Bank. Therefore, Notice as required under law was sent to the respondent accused on 19.3.2007 making demand of amount of the unpaid cheque. The respondent accused refused to accept the notice on 21.3.2007. Therefore, the complaint under section 138 of the Act was filed in the Court of learned JMFC, Vadodara and it was registered as Criminal Case No.8116 of 2007.

3. The trial Court issued summons to respondent accused, who appeared and pleaded not guilty to the charge and claimed to be tried. Therefore, the complainant adduced evidence in support of his case. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against respondent accused were explained to him. Respondent accused in his further statement recorded under section 313 of the Code of Criminal Procedure, 1973 denied having committed the offence and stated that he had obtained Rs. 50,000/- in the year 2002 and at that time, cheque in question with his signature was given, that the amount of Rs. 50,000/- was repaid through his brother-in-law, that the complainant used to purchase goods from his shop and as he demanded the amount of goods sold, cheque is presented in the Bank and false case is filed. The respondent accused also examined himself and a witness in his defence. After hearing learned advocates for the parties, the trial Court convicted the respondent accused. Therefore, Criminal Appeal No. 104 of 2009 was preferred by the respondent accused in the Court of learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Vadodara. After hearing learned advocates for the parties, the lower appellate Court by its impugned judgment, set aside the judgment and order of conviction passed by the trial Court and acquitted respondent accused. Being aggrieved by the said decision, the appellant - original complainant has preferred this acquittal appeal.

4. I have heard learned advocate Mr. Dave for the appellant, learned advocate Mr. Mehta for respondent No.2 at length and in great detail. I have also heard learned APP Ms. Shah for the respondent No.1 - State. I have also perused the R & P of the trial Court.

5. Learned advocate Mr. Dave for the appellant complainant submitted that under sections 118 and 139 of the Act, there is presumption of existing debt and the respondent accused has not rebutted the presumption. The learned trial Court was justified in convicting the respondent accused, but the lower appellate Court committed error in reversing the judgment. He also submitted that the evidence of the appellant complainant indicates the source of money for payment made to the respondent accused and the respondent accused did not reply to the notice nor did produce any evidence to rebut the evidence led by the appella