IMPORTANT POINT
The burden of proof to rebut the presumption of consideration under the N.I. Act lies with the accused, who must meet the standard of preponderance of probability.

JUDGMENT :

M.K. THAKKER, J.

1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 17.09.2022 passed in Criminal Case No. 2729 of 2016 by the learned 7th Additional Chief Judicial Magistrate (Negotiable Instruments Court), Rajkot.

2. The case of the complainant is that the complainant has purchased the residential quarter, i.e. block No. 1620 from the accused and the consideration amount of Rs. 1,70,000/- was paid. Subsequently, the respondent No. 2 i.e. the accused had dropped an idea of selling the said quarter and on demanding the money back evasive reply was given. Thereafter, cheque No. 255654 of State Bank of India, Ashok Gondhia, Hostel Road Branch, Rajkot was issued in favour of the complainant dated 23.12.2015 of the amount of Rs. 7,70,000/-. On depositing the said cheque, it was dishonored with an endorsement of ‘account closed’ vide return memo dated 19.01.2016.

2.1. On receiving the same, legal notice dated 27.01.2016 was issued to the accused, which was served on 29.01.2016. However, the respondent-accused neither replied to the notice nor complied with. Therefore, private complaint came to be filed before the competent court.

2.2. On filing the complaint, learned trial Court has issued warrant after recording the verification on 24.02.2016, making it returnable on 07.04.2016. Thereafter, the accused appeared and her plea was recorded below Exhibit 6 along with the further statement wherein the respondent-accused claimed to be innocent, pleaded not guilty and claimed to be tried. In addition to the same, it was stated by the respondent-accused that the accused is innocent. Since last many years they were staying separately, complainant had lodged around 10 cases and the complainant is a history sitter as they were staying in the same roof, the cheque was in possession of the complainant and the account was also operated by the complainant and by misusing the cheque which was lying with him, false complaint is filed.

2.3. To prove the guilty of the respondent-accused, the complainant has examined four witnesses being Narendrabhai Kantibhai Joshi-complainant himself below Exhibit 15, Jayeshbhai Labhshankar Dave below Exhibit 45, who was Sub-Engineer serving in the Gujarat Housing Board, Atulbhai Maganbhai Bhadja below Exhibit 51 Branch Manager of SBI and Saileshbhai Pranlal Kamdar Advocate & Notary.

2.4. In addition to the above witness, documentary evidence in the nature of disputed cheque below Exhibit 11, return memo below Exhibit 12, demand notice Exhibit 13, acknowledgment slip below Exhibit 14, the documents of the Gujarat Housing Board below Exhibit 46, deed dated 11.10.2021 of Gujarat Housing Board below Exhibit 49, Bank account statement of the respondent-accused below Exhibit 53, certificate issued under Section 65B below Exhibit 54, specimen signature card below Exhibit 55, Account statement of the respondent-accused below Exhibit 56, sale deed executed between the complainant and the respondent-accused dated 15.01.2013 below Exhibit 57, notary register Exhibit 63 and on filing the closing pursis below Exhibit 64 statement as earlier stated under Section 313 of the Code of Criminal Procedure, 1973 (the Cr.P.C. referred hereinafter) was recorded.

3. Learned trial Court after considering the evidence placed on record and the arguments advanced by the learned advocates for the respective parties acquitted the respondent-accused from the charges, which are impugned before this Court.

4. Heard the learned advocate Ms. Falguni Trivedi for the appellant-original complainant. As noted earlier present appeal was heard finally at admission stage, no notice was issued to the respondent-accused.

5. Learned advocate Ms. Falguni Trivedi for the appellant submits that the complainant had given the amount of Rs. 1,70,000/- towards the sale consideration of block No. 1620 and thereafter, it was conveyed that now she does not want to sale this quarter. On r