The main legal point established in the judgment is the rebuttable nature of the presumption under Section 139 of the Negotiable Instruments Act and the burden of proof on the accused to rebut the presumption.

JUDGMENT :

Order in R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 9188 of 2023

As this Court deems it fit to decide the case on merits, the formal leave seeking leave to prefer an appeal is granted.

Application seeking leave to prefer an appeal stands disposed of.

Order in R/CRIMINAL APPEAL NO. 1140 of 2023

1. This appeal is filed by the present appellant – complainant under Section 378 of Code of Criminal Procedure challenging the judgment and order passed by learned 6th Judicial Magistrate First Class, Mehsana, dated 1st April, 2023 in Criminal Case No.6928 of 2020.

2. It is the case of the complainant that complainant is doing the business in the name and style of Hotel Sahara Bridge. Brother of the accused No.2, namely, Sanjaybhai Ganpatbhai Patel is engaged in the business of construction of residential house of Government as well as private in the name and style of Maruti Constructions at Mehsana. As complainant was in need of the house at Mehsana, complainant came into the contact with accused No.2 and his brother Sanjaybhai and both have decided to give house to the complainant and therefore, complainant made payment to accused No.2 and his brother, Sanjaybhai with regard to purchase of the property of the land situated at Rangpur village. Due to Covid-19, hotel business of the complainant was closed and therefore, complainant had vacated the rented house, which was at Mehsana and returned back to the Ahmedabad. Thereafter, complainant dropped the idea to buy own house at Mehsana and met to the accused No.2 and his brother, Sanjaybhai and asked to repay the amount of Rs.11 lacs, which was given to purchase the property at Mehsana. Accused No.2 had given the cheque bearing Cheque No.463630 dated 5th October, 2020 for the amount of Rs.11 lacs with an assurance that on depositing the said cheque, the amount would be credited in the account of the complainant. On presenting the cheque with the bank, it was returned unpaid with an endorsement of payment stopped by the drawer. That after receiving the returned memo, the demand notice was issued to respondent-accused on 28th October, 2020, which was served upon respondent-accused on 31st October, 2020. Demand notice was replied by accused on 11.11.2020 and accused had denied legal debt of the complainant. Thereafter, the complaint came to be filed by the complainant being Private Complaint No.6928 of 2020 on 2.12.2020. The learned trial Court had issued the summons under Section 204 of the Code of Criminal Procedure and on the appearance of the accused, plea was recorded below Exh.8, 9 and 10. Accused had pleaded not guilty and claimed to be tried. To prove the case, the complainant had himself was examined below Exh.25 and had produced the documentary evidence in the nature of cheque, Exh.18, return memo Exh.19, demand notice Exh.10, online delivery status report of the postal department Exh.21 to 23, reply to the demand notice and counter notice given by the accused person Exh.24. On being filed the closing pursis by the accused persons below Exh.30, further statement of the accused were recorded under Section 313 of the Code of Criminal Procedure whereby accused had denied the incriminating material put before him and contended that disputed cheque was obtained by the complainant from one Sureshbhai Patel against whom the accused had filed the complaint under the Negotiable Instruments Act. To prove the defence, the accused No.2 was examined himself at Exh.41 and also examined the Bank Officer Mr.Nandan Priyadarshi at Exh.50. In addition to the aforesaid oral evidence, the documentary evidence in the nature of certified copy of stop payment application given by the accused to the Indian Bank, Navrangpura Branch produced below Exh.36, letter of Branch Manager replying to the stop payment application Exh.37, Bank statement lf Jay Steel Traders for the period from 30th May, 2016 to 30th May, 2017 was produced below Exh.38, certified copy of the Criminal Case filed against