JUDGMENT :

1. Present appeal has been filed by the appellant – original complainant under the provisions of Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 19.10.2016, passed in Criminal Case No. 1655 of 2013 by the learned Additional Chief Judicial Magistrate, Kalol, recording the acquittal.

2. The facts, in brief, are that appellant – original complainant – Brahmbhatt Kalicharan Babubhai, lodged a complaint before the Court that the respondent No. 2 herein had borrowed Rs.1,80,000/- from him for personal use and assured to repay in six months and for the same, he issued a Cheque bearing No. 956834 dated 15.03.2013 drawn on Indian Overseas Bank, Kalol Branch, 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 25.03.2013 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 competent Court at Kalol 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 to service of summons, the respondent No. 2 appeared before the Court. Since the accused did not plead guilty, trial was proceeded against him. Vide impugned judgment and order dated 19.10.2016, 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. Hardik C. Barot for the appellant – original complainant, learned advocate Mr. Nadeem B. Mansuri for the respondent No. 2 and learned APP Ms. Jirga Jhaveri for the respondent No. 1 – State.

3.1 Learned advocate Mr. Hardik C. Barot for the appellant – original complainant has mainly contended that the learned trial Judge ought to have convicted the accused inasmuch as the 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. 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. Further, the signature on the cheque was also not in dispute. 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 against him.

3.2 The learned advocate for the appellant further submitted that neither the cheque was sent to the handwriting expert nor anyone had been examined qua the cheque in question by the respondent No. 2 – accused. Accordingly, the learned trial Judge ought to have taken into consideration the said aspect of the matter.

3.3 The learned advocate for the appellant strenuously submitted that the learned trial Judge has committed a grave error in observing that the appellant – original complainant is not filing income tax return and had not produced the books of account or any other documentary evidence and thereby, has materially erred in not believing the dues to be the legally enforceable dues. He submitted that the appellant had lent the money to the respondent No. 2 out of friendship and on trust.

3.4 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 fact