JUDGMENT :

1. Present appeal has been filed by the appellant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 01.09.2007, passed in Criminal Case No. 968 of 2003 by the Metropolitan Magistrate, Court No. 16, Ahmedabad, recording the acquittal.

2. The facts, in brief, are that complainant – Pukhraj Achaldas, Proprietor of M/s. Magniram Achaldas, Ahmedabad lodged a complaint before the Court that the complainant and the respondent No. 1 were engaged in the Cloth business and were known to each other and had business relations. It is the case of the complainant that, for the business purpose, the respondent No. 1 used to borrow money from the complainant and to that effect, the complainant was also maintaining his account and thereby, the respondent No. 1 had availed Rs.10,57,190/- from the complainant and was legal due to the complainant. On demanding such money, the respondent No. 1 issued a cheque bearing No. 404385 dated 16.05.2003, drawn on the Union Bank of India, Dhanlaxmi Market, Revdi Bazaar, Ahmedabad for Rs.10,57,190/- and had assured to the complainant that he would get back his money by depositing the cheque in the bank, however, when on 16.05.2003, the complainant deposited the cheque in the Nagrik Sahakari Bank, Maskati Market, the same was returned by the bank with an endorsement “Account Closed”. Accordingly, the complainant issued a legal notice dated 22.05.2003 under the provisions of the Negotiable Instruments Act, 1881 (herein after referred to as “the NI Act”), which was served upon the respondent No. 1 on 28.05.2003. Since the respondent No. 1 neither replied to the said notice nor paid the cheque amount, the complainant constrained to file the complaint under Section 138 of the NI Act before the learned Metropolitan Magistrate Court, Ahmedabad. 2.1 Upon such complaint being filed and subsequent service of summons upon the respondent No. 1, he appeared before the Court. Since the accused did not plead guilty, trial was proceeded against him. Vide impugned judgment and order dated 01.09.2007, the learned Magistrate acquitted the accused person. Being aggrieved by the same, the appellant – original complainant has preferred the present appeal.

3. Heard, learned advocate Mr. J. B. Dastoor for the appellant – original complainant, learned advocate Mr. Jitendra Malkan with Ms. Khushboo Malkan and Ms. Alpa Dave for the respondent No. 1 and learned APP Ms. Monali Bhatt for the respondent No. 2 – State.

3.1 Learned advocate Mr. Dastoor for the appellant – original complainant has mainly contended that the learned Magistrate ought to have convicted the accused inasmuch as the cheque in question was duly signed by the respondent No. 1 and came to be dishonoured when presented before the bank with an endorsement “Account Closed”. Furthermore, in his submission, the learned Magistrate ought to have appreciated the fact that the cheque was issued for discharge of legal liability towards complainant and the fact that the respondent No. 1, in his examination-in-chief, Exh. 15 also admitted the transaction with the complainant. Further, it is submitted that the learned Magistrate ought to have appreciated the facts that: the cheque in question was deposited in the bank in time; legal notice upon the respondent No. 1 was also issued within the stipulated time; the notice was not replied and the signature of the respondent No. 1 on the cheque in question was never disputed; the cheque was returned unpaid with an endorsement “Account Closed”; the respondent No. 1 had not arranged to repay the money within the notice period and that, the Further Statement did not establish the defence of the respondent No. 1. It is further submitted that the learned Magistrate has failed to decide the onus probandi for the proof of legal dues. It is submitted that the learned Magistrate has wrongly applied the decision of the Apex Court M. S. Narayana Menon v. State of Ker