IMPORTANT POINT
The main legal point established in the judgment is that the complainant must establish a legally enforceable debt against the accused to prove the offense of dishonor of cheque under section 138 of the Negotiable Instruments Act, 1881.

JUDGMENT :

1. The present appeal is filed under section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order of acquittal dated 30.12.2022 passed by the learned Judicial Magistrate First Class, Shihori in Criminal Case No. 810 of 2015 acquitting the respondent-accused for the offence 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 doing the business of taking contracts. Accused no.3 society was granted contract by Road and Building Panchayat Department, Shihori and out of the three aforesaid works, two works being (1) box culvert road on Aslali to Sudrosan road and (2) Causeway on the same road were allotted to the complainant by the accused persons. The Power of Attorney was also executed on 31.05.2008 and thereafter, the complainant has taken over the charge on behalf of the accused no. 1 to 3 of above contracts. All the communications were addressed in the name of accused no. 3 and the bills were also raised by the accused no.3. Complainant were given the authorization to carry out the above works and the complainant was first paid Rs.4,42,000/- as the payment of expenses by the accused persons. Thereafter, work was further carried out and the complainant had invested his own funds on the assurance that on receiving the bill amount, the said funds would be repaid.

2.1. Thereafter, the complainant was informed not to carry out the work and to provide the accounts of the expenses. After calculating the amount, it came to Rs.5,50,000/- and for that accused no.1 and 2 have signed the cheque which was of accused no.3 Mandli. On depositing the said cheque with the bank, it returned with an endorsement of “payment is stopped by drawer”.

2.2. Thereafter, on following the due procedure under the N.I.Act, private complaint came to be filed wherein, the summons came to be issued to the accused under section 204 of Cr.P.C on recording the verification of the complainant and on appearance of the accused, plea came to be recorded below Exh. 15 and 16 wherein, the accused pleaded not guilty and claimed to be tried. Therefore, to bring home the guilt of the accused, the complainant himself was examined below Exh.25 and has produced five documentary evidences.

2.3. Thereafter, on filing the closing pursis, statement under section 313 of Cr.P.C came to be recorded wherein, the accused pleaded that the advance cheque which was lying with the complainant were misused. It is further contended that the cheque which was deposited of Gujarat Industrial Bank which went in liquidation in the year 2008 and no work of clearing were carried out by the bank. However, in the return memo, alteration is carried out and to grab the money from the accused persons, false case was created.

2.4. Learned trial court after considering the evidence and the argument advanced by the learned advocates for the respective parties was pleased to acquit the respondent accused from the charges leveled against them which is the subject matter of appeal before this Court.

3. Heard learned advocate Mr.H.V.Gajjar for the appellant- original complainant.

4. Learned advocate Mr.H.V.Gajjar submits that though presumption which is in favour of the complainant was not rebutted by the respondent-accused neither signature was disputed, the learned trial court has acquitted the respondent-accused without cogent reasons.

4.1. Learned advocate Mr.H.V.Gajjar submits that in the defence the respondent-accused had created a story that the alteration was made in the return memo and no initial was made by the Bank Officer. However, to establish this probable defence no bank officer was examined.

4.2. Learned advocate Mr.H.V.Gajjar further submits that evasive reply of demand notice was given by the respondent-accused and though respondent-accused fails to establish any convincing circumstances in their defence learned trial court has acquitted the respon