JUDGMENT :

1. The applicant-original complainant has filed the present application seeking leave to appeal under Section 378(4) of the Cr.P.C. in respect of the judgment and order of acquittal dated 11.12.2020 passed by the learned 2nd Additional Judicial Magistrate First Class, Himmatnagar (hereinafter referred to as “the trial Court”) in Criminal Case No. 33 of 2015 whereby the trial Court has acquitted the respondent No. 2 original accused from the charges levelled against him under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the said Act”).

2. The case of the applicant-complainant before the trial Court was that the applicant happened to know the respondent accused as he was a good friend of his brother and the accused was doing the business of facilitating the persons in getting job abroad (Saudi Arabia). Around two years back, the accused had charged Rs.1,80,000/giving assurance to a friend of the complainant that he would get a job for him in Saudi Arabia, however the accused did not arrange the job as per the promise made by him. When the complainant demanded the said money back from the accused, he gave a cheque of Rs. 1,80,000/to the complainant. The complainant having presented the cheque in the Bank of India, Mehsana Branch on 25.09.2014, the said cheque had returned with the endorsement “funds insufficient” on 28.10.2014. The complainant thereafter had issued a notice to the accused on 25.11.2014 calling upon him to make payment of the cheque, however the said notice was returned by the postal department as the accused was not found at the given address. Thereafter, the complainant filed a complaint before the Trial Court which was registered as the Criminal Case No. 33 of 2015. The trial Court after appreciating the evidence adduced by the complainant and considering the defence of the accused, acquitted the respondent-accused from the charges levelled against him under Section 138 of the said Act. The aggrieved complainant therefore has filed the present application seeking leave to appeal against the said judgment and order passed by the trial Court.

3. The learned Advocate Mr. Pratik Barot appearing for the applicant submitted that the respondent in his further statement recorded before the trial Court under Section 313 of the Cr.P.C. had neither disputed the signature on the cheque nor the very issuance of the cheque in question. According to him, the trial Court had committed an error in not raising a legal presumption in favour of the applicant-complainant under Section 139 of the said Act. The very fact that the respondent-accused had issued the cheque in favour of he complainant implied that it was issued towards the discharge of his debt or liability and the said cheque having been dishonored, a clear case for the offences under Section 138 of the said Act was made out.

4. Before appreciating the submissions made by the learned Advocate Mr. Barot appearing for the applicant, it is required to be noted that as transpiring from the evidence there was nothing on record produced by the complainant to suggest that the notice given by the complainant before lodging the complaint was received by the respondent-accused.

It is needless to say that as per clause (b) of the proviso to Section 138, the payee or holder in due course of the cheque, as the case may be, has to make a demand for the payment of the amount of the cheque by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid, and if the drawer of the said cheque fails to make payment of the said amount of money to the payee or holder in due course as the case may be within 15 days of the receipt of the said notice, the provisions of Section 138 could be said to have been attracted. So far as the facts of the present case are concerned, the complainant i.e. the applicant herein in the cross-examination before t