ORDER :

1. The applicant–original complainant has filed this Criminal Miscellaneous Application under Section 378 of the Criminal Procedure Code, 1973 seeking leave to Appeal against the judgment and order dated 24.07.2020 passed by the Chief Judicial Magistrate, Surat (hereinafter referred to as 'the trial Court') in Criminal Case No.27051/2018 whereby the respondent No.2-accused was acquitted from the charges leveled against him for the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the said Act).

2. The applicant / complainant had filed the complaint before the trial Court against the respondent No.2 accused alleging inter-alia that the complainant and the accused were friends and the accused was residing opposite to the house of the complainant. The accused was carrying on the business of bicycle repairing. Since the accused was in need of money for purchasing a house, the complainant had paid the accused in installments a sum of Rs.12,18,000/- between the period – January 2016 to December 2016. When the complainant demanded the money back, the accused issued a cheque dated 26.03.2018 for Rs.10,00,000/- in favour of the complainant. The said cheque when came to be presented in the Bank by the complainant was returned dishonored with an endorsement 'Account Closed' on 31.03.2018. The complainant thereafter, through his Advocate gave a legal notice to the accused demanding the cheque amount on 13.04.2018, to which the accused gave an evasive reply on 23.04.2018. The complainant therefore, filed the complaint under Section 138 of the said Act.

3. During the course of the trial, the applicant-complainant had examined himself at Exhibit 4 and had examined other witnesses, and had also produced the documentary evidence. The accused had also examined himself at Exhibit 25. The respondent accused had stated in his further statement recorded under Section 313 of the Code that the complainant had obtained a cheque from a third party and had misused the cheque. The Trial Court after appreciating the evidence on record came to the conclusion that the complainant had failed to prove the charges levelled against the accused beyond reasonable doubt and that the accused had successfully rebutted the presumption under Section 139 of the said Act. The trial Court gave the benefit of doubt to the respondent-accused and passed the impugned judgment and order. Being aggrieved by the said judgment and order, the applicant has filed the present application seeking leave to Appeal under Section 378(4) of the Criminal Procedure Code, 1973.

4. The learned Advocate for the applicant Mr. Matafer R. Pande submitted that the trial Court had failed to appreciate the evidence adduced by the complainant in its right perspective and had committed an error in not raising the presumption under Section 139 of the said Act in favour of the complainant. He also submitted that the respondent-accused having not denied the issuance of cheque in question, the legal presumption under Section 139 of the said Act was required to be raised by the complainant and that the accused had failed to rebut the said presumption.

5. On the other hand, the learned Advocate Mr. Hardik A. Dave for the respondent-accused submitted that the trial Court having rightly appreciated the evidence on record, and the complainant having failed to prove the charges levelled against the accused, the trial Court has rightly acquitted the respondent. According to learned Advocate Mr. Dave, the complainant had also not proved that he had the financial capacity to lend such a huge amount to the accused. Learned Advocate Mr. Dave submitted that the accused had given two cheques by way of security and the cheque in question was one of those cheques which has been misused by the complainant in respect of which the accused had also given a complaint to the Police Commissioner on 09.01.2017.

6. Having regard to the submissions made by the learned Advocates for the par