IMPORTANT POINT
The main legal point established is the requirement for the complainant to establish a legally enforceable debt against the accused and the principles for rebutting the presumption under Section 139 of the Negotiable Instruments Act.

ORDER :

1. This matter is a glaring example of misusing of the powers by the Police Officer who is doing the business of money lending.

2. The present application is filed seeking leave to prefer an appeal against the judgment and order dated 09.08.2023 passed by the learned 7th Additional Judicial Magistrate First Class, Mahesana in Criminal Case No. 3066 of 2020 acquitting the respondent-accused for the charges punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I.Act”).

3. It is the case of the complainant namely Amarben that complainant lent the amount of Rs.2,50,000/- for education of children and treatment of accused’s father’s cancer ailment in several parts starting from 15.08.2019 to 22.10.2019 to the accused. For the repayment of the aforesaid hand loan the cheque bearing no. 000002 dated 26.02.2020 of Rs.2,50,000/- was issued in favour of the complainant and on depositing the same on 03.03.2020, it was returned with an endorsement of “funds insufficient” 04.03.2020. With above contention, private complaint came to be filed before competent court.

4. On being summoned, the accused appeared and his plea was recorded wherein, he pleaded not guilty and claimed to be tried.

4.1. Complainant in order to prove the guilt of the accused has examined four witnesses namely (1) Amarben Jethabhai Parmar, (2) Diptiben Jethabhai Parmar (Power of Attorney holder of complainant), (3) Vanjha Urviben Dilipbhai - Senior Clerk, Gujarat State Commission for Women and (4) Ismail Daoodbhai Mansuri - Police Sub- Inspector, Gomtipur Police Station, Ahmedabad. The documentary evidence in the nature of cheque, return memo, FIR being No. 11191018200232, Power of Attorney given by Amarben- complainant to Diptiben, complaint given by Diptiben to Gujarat Women Commission below Exh.55, quashing petition being Criminal Miscellaneous Application No. 10382 of 2020 was produced in addition to the oral evidence.

4.2. On filing the closing pursis, statement recorded under section 313 of the Code of Criminal Procedure, 1973 wherein, the accused pleaded that the amount which was borrowed was already paid to the complainant and receipt of the aforesaid amount was admitted by the complainant in the statement recorded before the police pursuant to the police complaint given by the present accused wherein, it was stated that disputed cheques were at the house of her mother which would be returned and the same cheque would not be utilized.

4.3. Thereafter, learned trial court, after hearing the arguments and considering the evidence, has come to the conclusion that complainant fails to establish the legally enforceable debt against the respondent-accused and respondent-accused was acquitted from the charges leveled against him which is subject matter of challenge before this Court.

5. Heard learned advocate Mr.Rajesh Barot on behalf of learned advocate Mr.Nirav Thakkar for the applicant- original complainant.

5.1. Learned advocate Mr.Rajesh Barot submits that learned trial court has committed grave error in acquitting the respondent-accused in absence of the rebuttal of presumption which is in favour of the complainant under section 118 and 139 of the N.I.Act.

5.2. Learned advocate Mr.Rajesh Barot submits that respondent-accused had admitted the issuance of the cheque, borrowing of the amount and had not placed any evidence with regard to the repayment of the loan amount to the complainant i.e Amarben and statement which was recorded of the daughter namely Diptiben would not be binding to the complainant as Amarben did not receive the amount which was lent to the accused.

5.3. Learned advocate Mr.Rajesh Barot submits that it is true that after chief examination was over of the complainant, Amarben did not come for the cross- examination and thereafter, the evidence of Diptiben who is the Power of Attorney Holder of Amarben was recorded but that Power of Attorney was not available at the time when the statement was record