IMPORTANT POINT
The judgment underscores the importance of evidence in rebutting presumptions under N.I.Act and the preponderance of probability standard in discharging the burden of proof.

ORDER :

1. This application is filed seeking leave to prefer an appeal against the judgment and order passed by the learned 2nd Additional Chief Judicial Magistrate, Anand in Criminal Case No. 141 of 2020 dated 15.07.2023 whereby, the accused came to be acquitted for the offences punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I.Act”).

2. It is the case of the complainant that complainant is retired and doing the agriculture work and as the accused and the complainant were co-employees and were having good relations, the accused wanted to send his son for further studies to Australia, therefore, he sought for financial help from the respondent-accused. In turn, the respondent-accused lent Rs.32,50,000/- in parts, after selling the shop, from the funds of gratuity/PF and after borrowing amounts from the friend. The amount was lent for a period of two years and on completion of two years, demand of the aforesaid amount was made and the respondent-accused, for repayment of the aforesaid amount, has issued the cheque bearing no. 043804 for the amount of Rs.30,00,000/-.

2.1. On depositing the said cheque with the bank, it was returned, therefore, criminal case was filed before the learned Additional Chief Judicial Magistrate being Criminal Case No. 4428 of 2017 which was dismissed. Thereafter, the private complaint came to be filed before the learned Chief Judicial Magistrate Court being Criminal Inquiry No. 49 of 2018.

3. After dismissal of the case i.e Criminal Case No. 4428 of 2017, the respondent-accused had issued further cheque bearing no.043806 of Rs.30,00,000/- dated 05.11.2019. On depositing the said cheque with the bank it was returned with an endorsement of “payment stopped by drawer”. Therefore, after following due procedure under the law, private complaint came to be filed.

4. Process came to be issued under section 204 of the Code of Criminal Procedure, 1973 against the respondent- accused and his plea was recorded below Exh.10 wherein, the accused had pleaded innocent and claimed to be tried.

4.1. To prove the guilt of the accused, complainant has produced the documentary evidence in the nature of cheque, return memo, notice, RPAD slip etc. and has examined himself below Exh.5. On filing the closing pursis, further statement under section 313 came to be recorded wherein the accused had pleaded false implications and stated to produce the documentary evidence in his defence.

5. In order to prove his defence, accused himself was examined below Exh.28 and has produced the TT Invoice Copy given by the IndusInd Bank, Anand to the Bank of New Zealand showing that amount is transferred by the bank below Exh.31, passport copy of the son Exh.32, statement of account of the wife from 01.07.2014 to 31.08.2014 of Indian Bank, Anand.

6. That, after filing the closing pursis by the accused, learned trial court has considered the evidence placed on record as well as the arguments advanced by the learned advocates for the respective parties and acquitted the respondent-accused from the charges leveled against him which is the subject matter of challenge before this Court.

7. Heard learned advocate Mr.Hiren Somaiya for the applicant-complainant. Learned advocate Mr.Somaiya submits that initially, the criminal case came to be filed before the learned Chief Judicial Magistrate Court being Criminal Case No. 4428 of 2017 for the dishonouring of the cheque bearing no. 043804 for the amount of Rs.30,00,000/-. The aforesaid criminal case was disposed of and the accused was acquitted vide judgment and order dated 24.09.2018. Thereafter, again the complainant has issued the cheque to settle the dispute between parties for the same amount on 05.11.2019 bearing cheque no. 043806. On depositing the cheque, it was dishonuored with an endorsement of “payment stopped by drawer” and though the notice was issued but the respondent-accused neither replied to the notice nor complied with the notice.

7.1. Le