The presumption in favor of the complainant under the N.I. Act is rebuttable, and the standard of proof required to prove a defense in a criminal case is preponderance of probabilities.

JUDGMENT :

M.K. THAKKER, J.

1. This is an appeal filed by the appellant-original complainant under Section 378 of the Criminal Procedure Code challenging the judgment and order dated 23.08.2023 passed by the learned 5th Additional Chief Judicial Magistrate, Gandhinagar in Criminal Case No. 4603 of 2021, whereby, the learned trial Court has acquitted the respondent no. 2-accused from the charges levelled against her under Section 138 and 142 of the Negotiable Instrument Act.

2. It is the case of the complainant that the complainant is staying with the family consisting of wife and a younger son viz. Nrupesh at the address given in the complaint. The accused is the daughter of brother-in-law and doing the business of Astrology and Reiki. The marriage of the accused was solemnized with one Suraj Kumar Shah, who died in the month of April, 2018. It is alleged in the complaint that the husband of the accused was doing the business of money lending. The accused used to visit the house of the complainant and in the year 2015, the accused had demanded an amount of Rs. 1,00,000/- from the complainant for renovation of the house and the complainant had lended the amount of Rs. 1,00,000/- to the accused. In the year 2017, again the accused raised demand of Rs. 20,00,000/- for renovation of her house, the complainant had lended an amount of Rs. 18,00,000/- in parts to the respondent-accused. In the year 2018, the husband of the accused died and thereafter, in the end of the year 2018, the complainant alongwith the relatives went to accused and demanded the money back. Against which, a cheque bearing No. 624993 of Indian Overseas Bank, Karelibaugh Branch, Vadodara was issued by the respondent-accused in favour of the complainant. It was informed by the accused to the complainant that the cheque should be deposited on the instructions given by the accused to the complainant, as due to sudden death of the husband, number of people were approaching her and demanded the money back. In the year 2020, due to Covid-19, the complainant has waited, but in the year 2021, instruction was given by the accused to deposit the cheque, which was given to the complainant. On being instructed, the cheque was deposited on 01.07.2021, which was returned with an endorsement of “insufficient fund” and therefore, demand notice came to be issued on 27.07.2021 to the respondent-accused. The said notice was served to the respondent-accused on 31.07.2021. An evasive reply was given by the respondent-accused and denied for issuance of the cheque. Thereafter, a private complaint came to be filed under the N.I. Act before the competent Court, wherein, after recording the verification, the learned trial Court had issued summons under Section-204 of Cr.P.C. to the respondent-accused.

3. On being appearing the respondent-accused, a plea was recorded below Exh.7 and she pleaded not guilty and claimed to be tried.

4. To prove the case, the complainant had examined himself below Exh.8, one witness viz. Vaishali Suresh Vaghela below Exh.21 and another witness viz. Vijay Vaijnath Nagane below Exh.30. To prove further, documentary evidence in the nature of original cheque at Exh.10; return memo at Exh.11; copy of the notice at Exh.12; receipt of the Post Office at Exh.13; Track Report of the Post Department at Exh.14; Bank Statement of accused at Exh.22, Authority Letter at Exh.19; Letter issued by the Bank at Exh.26; Letter given by the accused at Exh.27 and Bank Statement of the complainant at Exh.32 were produced.

5. On filing closing pursis below Exh.37, further statement of the respondent-accused came to be recorded, wherein, she stated that the cheque was stolen and misused by the complainant. She denied for the existence of any debt and pleaded to be innocent.

6. After considering the evidence placed on record and the submissions advanced by the learned advocates for the respective parties, the learned trial Court had acquitted the respondent-accused on coming to the conclusion