IMPORTANT POINT
The accused can rebut the presumption in favor of the complainant by raising a probable defense, and the burden of proof shifts to the complainant in such cases.

JUDGMENT :

1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C. referred hereinafter) challenging the judgment and order of the acquittal passed by the learned 2nd Additional Chief Judicial Magistrate, Himmatnagar at Sabarkantha in Criminal Case No.6123 of 2013 below Exhibit 117 dated 24.08.2023, whereby the respondent-accused was acquitted from the charges under Section 138 of the N.I.Act.

2. Brief facts of the present case in a capsulized form are as follow:

2.1. It is the case of the complainant that the complainant and the accused were belonging from the same village and they were friends and having homely relations with each other. On sudden needs of the money, the respondent-accused came to the house of the complainant on 13.01.2013 and demanded the amount of Rs.3 Lakh. The complainant from his saving as well as after arranging the fund from the family members as well as the friends has lent the amount of Rs.2,49,999/to the respondent-accused.

On being repeated demand, cheque bearing No.228327 of Sabarkantha District Central Cooperative Bank, Raygadh Branch for the amount of Rs.2,49,999/was issued in favour of the complainant dated 01.05.2013.

2.2. On depositing the said cheque on 12.07.2013 same was returned with an endorsement of ‘fund insufficient’, ‘signature differ’, ‘the stamp of the firm is missing’. On receiving the return memo, demand notice was issued below Exhibit 20.

As the demand notice was neither replied nor complied, therefore, private complaint came to be filed before the competent Court. The accused came to be appeared before the learned trial Court and his plea was recorded wherein the accused pleaded not guilty and claimed to be tried.

2.3. To prove the guilt of the accused, the complainant had examined himself below Exhibit 60 and the Bank officer at Exhibit 66. Further the documentary evidence in the nature of disputed cheque Exhibit 18, Exhibit 19, copy of the notice Exhibit 20, post receipt Exhibit 21 and acknowledgment slip Exhibit 22 were produced.

2.4. On filing the closing pursis, statement was recorded under Section 313 of the Cr.P.C. wherein the accused pleaded innocent and stated that the bag containing the cheque as well as the necessary documents was fallen down from the bike and with regard to the same the Janvajog application was registered before the Gambhoi Police Station as well as the application was given for the stop payment before the Bank authority and by misusing the said cheque and making the forge signature on the same, the false complaint is filed before the learned trial Court.

2.5. In addition of his statement, accused had produced the documentary evidence in the nature of specimen signature Exhibit 67, account opening form Exhibit 68, account opening form Exhibit 69. The reply given by the police sub inspector, Gambhoi Police Station Exhibit 95, affidavit on the stamp paper Exhibit 106, application given to the police station Exhibit 107, reply to the demand notice Exhibit 108, postal receipt Exhibit 109, acknowledgment slip Exhibit 110 and the reply of Head Constable of Gambhoi Police Station Exhibit 111.

2.6. After considering these evidences and the arguments made by the learned advocates for the respective parties, learned trial Court was pleased to acquit the respondent-accused from the charges under Section 138 of the N.I.Act which is impugned before this Court.

3. Heard learned advocate Mr.Mahendra Vora for the appellant and as this matter is decided on merits at admission stage, after perusing the record and proceedings, without issuing the notice to the respondent, respondent was not heard.

4. Learned advocate Mr.Mahendra Vora submits that though the defence of the respondent-accused was not believed by the learned trial Court with regard to the missing of the cheque book and giving application before the concerned police station as well as to the Bank authority, judgment and order of acquittal was passed. Learned advocate Mr.Vora s