Point of Law: The presumption under Section 118 of Act, 1881 comes into being that until the contrary is proved, every negotiable instrument was drawn for consideration.

JUDGMENT :

1. Present appeal has been filed by the appellant – original complainant challenging the judgment and order dated 03.01.2005, passed in Criminal Appeal No. 8 of 2004 by the learned Additional Sessions Judge, 6th Fast Track Court, Banaskantha @ Palanpur, recording the acquittal. The said appeal was filed against the judgment and order dated 01.04.2004 passed in Criminal Case No. 6263 of 1998 filed under the provisions of Section 138 of the Negotiable Instruments Act, 1881 (NI Act), by the learned 4th Joint Civil Judge (Senior Division) and Judicial Magistrate First Class, Palanpur, whereby, the learned Magistrate had convicted the respondent – accused.

2. Facts in nutshell are that complainant – Bhagvandas Gangarambhai, original accused Pradipkumar Hargovindbhai Patel and others jointly decided to purchase a land belonged to Jain Mahajan Trust, Palanpur. In the said land, the complainant had 30% share i.e. 22710 sq. mtrs. of land, which the accused decided to purchase from the complainant and an agreement, Exh. 29 to that effect was also entered into between them on 10.11.1997 for a sale consideration of Rs.5,70,620/-. Out of the said amount, the respondent - accused paid Rs.3,09,000/- and for rest, the accused issued cheques, respectively dated 02.01.1998 and 02.02.1998 for Rs.1,86,540/- each. However, on 04.06.1998, when the complainant deposited the cheques in the Union Bank, Palanpur, the same were returned by the bank with an endorsement “Stop Payment”. On enquiring with the bank, the complainant allegedly found that, in fact, no sufficient fund was there in the account of the accused. Accordingly, the complainant issued a legal notice dated 17.06.1998 under the provisions of the NI Act, which was served upon the respondent – accused, who replied the said notice on 17.07.1998. Since the respondent No. 1 did not pay the cheque amounts, the complainant constrained to file a complaint under Section 138 of the NI Act before the learned Judicial Magistrate First Class, Palanpur, who, on conclusion of the trial, convicted the accused for the alleged offence and sentenced him to undergo simple imprisonment for one year with fine of Rs.5,000/-, in default thereof, to undergo further simple imprisonment for two months. The accused was also ordered to pay compensation in the sum of Rs.2,50,000/- to the complainant. The said judgment and order was the subject matter of challenge before the learned Sessions Judge, who, on re-appreciation and reevaluation of the evidence, reversed the conviction into acquittal by way of the impugned order herein.

3. Heard, learned advocate Ms. Archana Acharya for the appellant – original complainant, learned advocate Mr. Girish K. Patel for the respondent No. 1 and learned APP Ms. Jirga Jhaveri for the respondent No. 2 – State.

3.1 Learned advocate Ms. Acharya for the appellant – original complainant has mainly contended that the learned Sessions Judge ought not to have reversed the judgment and order passed by the learned trial Court, whereby, the respondent – accused had been convicted and sentenced. She submitted that the cheques in question were duly signed by the respondent No. 1 and came to be dishonoured when presented before the bank with an endorsement “Stop Payment”. Furthermore, in her submission, the learned Sessions Judge ought to have appreciated the fact that the cheques were issued for discharge of legal liability towards complainant and the fact that the respondent – accused has also admitted the agreement, Exh. 29 with the complainant and issuance of cheques towards outstanding dues of sale consideration. The learned advocate for the appellant strenuously submitted that part sale consideration was also made by the respondent – accused and for remaining amount, the cheques in question were issued, which were dishonoured as stopped payment. She submitted that as per the accused, the land in question belongs to the trust and on coming to know about the same, he got the payment sto