IMPORTANT POINT
The burden of proof in cases of dishonored cheques lies on the accused to raise a probable defense, and the presumption in favor of the holder is rebuttable.

JUDGMENT :

1.This appeal is filed by the appellant-original complainant under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C. referred hereinafter) challenging the impugned judgment and order of acquittal dated 16.12.2022 passed in Criminal Case No.543 of 2019 by the learned Special Judge, N.I.Act Court, Surat.

2.Case of the complainant is that the complainant is doing the business in the name and style of Remedial Fashion Proprietor and the accused is doing online business and giving the orders to the complainant for readymade goods. The accused No.2 is managing the whole business of the accused and as per the order placed by the accused, the goods were sent of the amount of Rs.81,076/- by way of different challans. For the payment of the aforesaid amount as well as the late payment charges, the cheque bearing No.001483 of ICICI Bank dated 25.10.2018 for the amount of Rs.1 Lakh was issued in favour of the complainant. On depositing the aforesaid cheque, it was returned with an endorsement of ‘fund insufficient’. Therefore, the demand notice was issued on 27.11.2018 which was returned with an endorsement of ‘no person staying at the Kanjali Company’ on 30.11.2018.

2.1. On following the procedure prescribed under the Act, private complaint came to be filed before the learned trial Court, wherein after recording the verification, summons came to be issued upon respondents-accused. On being appeared, plea came to be recorded below Exhibits 21 and 22 of the accused, wherein accused pleaded not guilty and came to be tried.

2.2. To prove the case, the complainant had examined himself below Exhibit 4 and produced the documentary evidence in the nature of bill and different challans from Exhibit 23 to Exhibit 34, outstanding report below Exhibit 35, cheque below Exhibit 36, returned memo below Exhibit 37, demand notice below Exhibit 38, Indian Post Receipt below Exhibit 39, thereafter on filing the closing pursis further statement was recorded wherein the accused had denied for the issuance the cheque and stated that the alteration was made in the cheque and he wants to send the disputed cheque before the handwriting expert and the application was given along with the prayer that action may be taken under Section 340 of the Cr.P.C. below Exhibit 9 which was rejected vide order dated 17.08.2021 by the learned trial Court on the ground that there is no any cogent and reliable reasons found to send the cheque to the FSL.

2.3. Thereafter, again an application was preferred by the respondent-accused below Exhibit 53 stating that there is an alteration in the dates, cheque and in place of ‘2016’, ‘08’ is added, which was also rejected by the learned trial Court vide order dated 27.04.2022. In the said order, the learned trial Court has observed that if the accused wants to examine any experts in his defence then that liberty is reserved. Thereafter, the respondents-accused had produced the opinion of the expert i.e. S.J. Laboratory wherein it was opined that in dates numerical ‘6’ has been converted into numerical ‘8’. In addition to that the expert was also examined below Exhibit 63, namely, Jayeshkumar Jagdishkumar Dave.

2.4. That learned trial Court after considering the evidence on record and the arguments advanced by the learned advocates for the respective parties has come to the conclusion that the complainant fails to establish the legally enforceable debut against the respondents-accused and the respondents-accused is acquitted from the charges, the same is impugned before this court.

3.Heard the learned advocate Mr.Nishit Joshi for the appellant and as this Court has decided the case at admission stage, though the respondents-advocate was represented through his advocate, but was not allowed to argue.

4.Learned advocate Mr.Joshi submits that the judgment and order of the trial Court was passed mainly on two grounds; (i) that as per the opinion of the handwriting expert there is an alteration made with the disputed chequ