IMPORTANT POINT
The central legal point established in the judgment is that for an offense under Section 138 of the Negotiable Instruments Act, the debt or liability must be legally enforceable.

JUDGMENT :

M.K. THAKKER, J.

1. This appeal is filed under Section 378 of the Code of Criminal Procedure by the present appellant-original complainant challenging the judgment and order of acquittal dated 15.04.2023 passed by the learned 11th Additional Chief Judicial Magistrate, Vadodara in Criminal Case No. 20803 of 2020 acquitting the respondent-accused from the charges punishable under Section 138 of the Negotiable Instruments Act.

2. It is the case of the complainant that the complainant is the land broker and land developer and the accused was the retired Deputy Mamlatdar and Executive Magistrate. As the complainant was doing the business of developing the land and brokerage, he regularly visiting the village: Bhimpor, taluka: Choryasi, district: Surat. The complainant wanted to purchase the land bearing survey nos.53 and 54 situated at village: Bhimpor, taluka: Choryasi, district: Surat and at the relevant point of time, the respondent-accused was serving as a Mamlatdar, Surat, therefore, he was contacted for conversion of the agricultural land and for the other revenue proceedings and for that, the huge amount has been paid to him however, ultimately, that proceedings were not completed and, therefore, the police complaint came to be filed by the complainant against the respondent-accused as well as the other person. The respondent-accused has settled the dispute with the complainant and agreed to pay the amount of Rs. 50 lacs towards the settlement. As at a stretch, he was not having that much amount and, therefore, before the police, he issued the cheque in favour of the complainant for the amount of Rs. 25 lacs. On depositing the said cheque with the bank, the same was dishonoured, therefore, the complainant had again approached the police station where, the another cheque was issued by the respondent-accused as well as his own flat being flat no. 302 situated at Bhulabhai Park, Adajan village, Surat was handed over to the complainant. The assurance was given to the complainant that the cheque which was dishonoured earlier, would be honoured on re-depositing the same and in the event, if it is again dishonoured, then he would execute the sale deed in favour of the complainant. The possession of the flat was already handed over to the complainant by the respondent-accused before the police and as on the date when the complaint was filed, the said flat was in the possession of the complainant. On re-depositing the cheque, again it was dishonoured and, therefore, the demand notice under Section 138 of the Negotiable Instruments Act was issued on 07.09.2020 which was received by the respondent-accused on 10.09.2020. The respondent-accused neither replied to the demand notice nor complied with the same, therefore, after following the due procedure under the Negotiable Instruments Act, the private complaint came to be filed before the learned trial Court.

3. On recording the verification, the summons came to be issued under Section 204 of the Code of Criminal Procedure on 26.10.2020. The respondent-accused appeared before the learned trial Court on 21.10.2021 and his plea came to be recorded below exh.8 on the same day. Thereafter, on few dates, the respondent-accused appeared before the learned trial Court but, as he remained absent on multiple dates before the learned trial Court, the stage of cross-examination of the complainant was closed on 30.11.2022. Thereafter also, he remained absent and, therefore, the stage of further statement was also closed and after considering the evidence placed on record by the complainant, the learned trial Court has passed the judgment and order of acquittal which is impugned before this Court.

4. Heard learned advocate Mr. Malaykumar Patel for the appellant-original complainant and as this appeal is decided at the admission stage finally, no notice is issued to the respondent-accused.

5. Learned advocate Mr. Patel submits that though the respondent-accused failed to discharge the onus to reb