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 31.07.2004, passed in Criminal Case No. 273 of 1999 by the learned Judicial Magistrate First Class, Idar, recording the acquittal.

2. The facts, in brief, are that complainant – Jagdishkumar Kantilal Soni, resident of Taluka: Idar, lodged a complaint before the Court that the respondent No. 2 herein had borrowed Rs.31,000/- from him and to repay the same, he issued a Cheque bearing No. 407131 dated 10.09.1998 drawn on The Sabarkantha District Central Coop. Bank Ltd., Badoli, which, the complainant presented in bank, but the same was returned by the bank with an endorsement “insufficient fund” and hence, the complainant issued a legal notice dated 04.02.1999 to the respondent No. 2 through his advocate by RPAD, however, since the respondent No. 2 did not repay the said amount, the complainant was constrained to file complaint before the Court of learned Judicial Magistrate First Class, Idar under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as “the NI Act”).

2.1 Upon such complaint being filed and subsequent service of summons upon the respondent No. 2, he appeared before the Court. Since the accused did not plead guilty, trial was proceeded against him. Vide impugned judgment and order dated 31.07.2004, the learned trial Judge acquitted the accused person. Being aggrieved by the same, the appellant – original complainant has preferred the present appeal.

3. Heard, learned advocate Mr. Himanish J. Japee for learned advocate Mr. J. V. Japee for the appellant – original complainant, learned advocate Ms. Rekha H. Kapadia for the respondent No. 2 and learned APP Ms. Moxa Thakkar for the respondent No. 1 – State.

3.1 Learned advocate Mr. Japee for the appellant – original complainant has mainly contended that the learned trial Judge ought to have convicted the accused inasmuch as issued, cheque in question was duly signed by the respondent No. 2 and came to be dishonoured when presented before the bank for insufficiency of fund. Furthermore, in his submission, the learned trial Judge ought to have appreciated the fact that the cheque was issued for discharge of legal liability towards complainant and has erred in not believing the said aspect of the matter. Further, it is submitted that the learned trial Judge ought to have held that legal notice upon the respondent No. 2 was issued within the stipulated time and that, all the requirements under the provisions of Section 138 of the NI Act were fulfilled. Further, in his submission, the learned trial Judge ought to have held in view of the evidence on record that the accused had failed to rebut the onus of proof and statutory presumption under Section 139 of the NI Act against him.

3.2 The learned advocate, taking this Court through the oral as well as the documentary evidence on record, submitted that though the case against the accused was proved beyond reasonable doubt, however, the learned trial Judge has not properly appreciated the evidence on record and thereby, has committed an error in recording acquittal and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to the facts and evidence on record. Accordingly, he urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal.

3.3 In support, the learned advocate for the appellant has relied upon following decisions:

(i) Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197;

(ii) Rohitbhai Jivanlal Patel v. State of Gujarat and Another, (2019) 18 SCC 106.

4. Per contra, learned advocate Ms. Rekha Kapadia for the respondent No. 2 – accused, while supporting the impugned judgment and order of the trial Court, submitted that the learned trial Judge has, after due and proper appreciation and evaluation of the evidence on record, has c