JUDGMENT :

M.K. THAKKER, J.

1. This appeal is filed under Section 378 of the Code of Criminal Procedure challenging the judgment and order of acquittal dated 05.04.2023 passed by the learned 2nd Additional Judicial Magistrate First Class and Civil Judge, Dahod in Criminal Case No. 1056 of 2022 whereby, the respondent-accused was acquitted from the charges under Section 138 of the Negotiable Instruments Act.

2. It is the case of the complainant that the complainant, who is the finance company, had given a loan for the amount of Rs. 7,10,000/- to the respondent-accused by way of the Hire Purchase Agreement for purchasing the vehicle. The respondent-accused, for the payment of the loan amount, has issued the cheque in favour of the complainant bearing cheque no. 009402 dated 22.01.2022 for the amount of Rs. 7,10,000/-. On depositing the said cheque with the bank, the same was returned with an endorsement ‘insufficient fund’ on 25.01.2022, therefore, the demand notice was issued to the complainant which was received by the complainant on 16.02.2022 however, the complainant neither replied nor complied with the said notice and, therefore, the private complaint came to be filed before the competent Court being Criminal Case No. 1056 of 2022. The learned trial Court, after recording the verification, has issued the summons vide order dated 13.05.2022. The accused appeared before the learned trial Court on 02.09.2022 and his plea was recorded below Exh.7 wherein, he has pleaded not guilty and claimed to be tried.

3. To prove the case against the respondent-accused, the complainant has examined himself as PW-1 and PW-2 - witness, namely, Maheshbhai Vijaybhai Dhamoriya, the Collection Manager. In addition to the above evidence, the complainant has also produced the power-of-attorney dated 01.10.2018, cheque, return memo, demand notice, statement of accounts etc. On filing the closing pursis, the statement under Section 313 of the Code of Criminal Procedure was recorded wherein, the complainant had denied the allegation and submitted that the vehicle for which, the loan was taken from the complainant-company, was seized and it was auctioned. The complainant was not informed with regard to the procedure of auction neither informed with regard to the price which was received and by suppressing the said fact, false complaint came to be filed by the complainant. It is further contended in the statement that the security cheque which was lying with the complainant was misused and, therefore, the complainant is not liable to pay the cheque amount. Considering the evidence placed on record and the submissions advanced by the learned advocates for the respective parties, the learned trial Court has acquitted the respondent-accused from the charges, which is impugned before this Court.

4. Heard learned advocate Mr. Manish Patel for the appellant-complainant and as this matter has been decided at the admission stage finally, no notice was issued to the respondents.

5. Learned advocate Mr. Patel for the appellant-original complainant submits that though the respondent failed to discharge his onus to rebut the presumption which is in favour of the complainant under Section 139 of the Negotiable Instruments Act, the learned trial Court has acquitted the respondent-accused only on the ground that the complainant fails to prove the legally enforceable debt towards the respondent-accused. The learned advocate submits that the loan statement which was produced below Exh.25 by the complainant reveals that after availing the loan facility, the default was committed by the respondent-accused and the cheque which was given to discharge the liability, was dishonoured and though the said loan statement was not rebutted by the respondent-accused either during the cross-examination or by leading the evidence which may be in the standard of preponderance of probability, the judgment and order of acquittal was passed by the learned trial Court. The learned advocate subm