JUDGMENT :

1. Present appeal has been filed by the appellant – Maheshbhai Ambalal Patel (Original Complainant) (hereinafter referred to as the “Appellant”) under Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 17.2.2007, passed in Criminal Case No. 5292 of 2004 by the learned 3rd Additional Senior Civil Judge & Judicial Magistrate First Class, Anand recording the acquittal against Respondent No.2 – Prakash Manibhai Patel (Original Accused) for the offence punishable under Section 138 of the Negotiable Instruments Act.

2. The facts, in brief, are that the appellant has lodged a complaint before the Court that the respondent No. 2 herein had borrowed Rs.1,48,735/- from him since he was in need of money. That, respondent no. 2 had promised to repay the said amount within about 2 months. The respondent No. 2 gave a cheque being No. 980724 dated 18.8.2004 of Rs.1,48,735/- to the appellant and had assured that the said cheque would be honoured. That, the appellant had deposited the said cheque on 18.8.2004 and on the very same date the said cheque was returned as dishonoured on the ground of ‘insufficient funds’ and hence, the complainant issued a legal notice dated 26.8.2004 to the respondent No. 2 by registered Post A.D. and U.P.C. under Section 138 of the Negotiable Instruments Act. That, the said legal notice was served upon the respondent on 28.8.2004, but the respondent -accused did not give satisfactory reply to the said legal notice and therefefore the appellant was constrained to file a complaint before the Court of learned 3rd Additional Senior Civil Judge & Judicial Magistrate First Class, Anand under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as “the NI Act”).

3. 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 17.2.2007, the learned trial Judge acquitted the accused person. Being aggrieved by the same, the appellant has preferred present appeal.

4. Heard, learned advocate Mr. Suraj Matieda with learned advocate Mr. S.P. Majmudar for the appellant and learned APP Ms. Monali Bhatt for the Respondent No.1 – State and learned advocate Ms. Rhea Choksi with learned advocate Mr. Tejas Barot for the respondent No. 2.

5. Learned advocate Mr. Suraj Mateida with learned advocate Mr. S.P. Majmudar for the appellant has mainly contended that the in the present case, pursuant to the judgment and order passed by the learned trial Court, it appears that notice has already been served to the accused but for the same reply is not given to the complainant but given to the Dilipbhai. Learned advocate also contended that there is nothing in cross examination regarding the Dilipbhai and therefore, there is an error committed by the learned trial Court. Learned Advocate for the Appellant has further contended that the Appellant has proved his case beyond reasonable doubt by leading cogent and conclusive evidence. It is also contended that the order passed by the learned Trial Judge is illegal, improper, unjust against the settled principles of law.

5.1 The learned advocate also urged that once the notice is issued, in that case, burden of proof is upon the accused and the accused has not proved the rebuttal and there is no necessity of production of books of accounts from the appellant. It is urged that the case of Rohitbhai Jivanlal Patel Vs. State of Gujarat reported in (2019) 18 SCC 106, the Hon’ble Apex Court held in Para 21, which reads as under:

“20. On perusing the order of the Trial Court, it is noticed that the Trial Court proceeded to pass the order of acquittal on the mere ground of 'creation of doubt'. We are of the considered view that the Trial Court appears to have proceeded on a misplaced assumption that by mere denial or mere creation of doubt, the appellant had successfu