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HEMANT M. PRACHCHHAK
Amaratji Bhathiji Parmar – Appellant
Versus
State Of Gujarat – Respondent
JUDGMENT :
(Hemant M. Prachchhak, J.)
1. Present appeal is filed by the appellant – original complainant under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the impugned judgment and order dated 13.11.2006 passed by the learned Judicial Magistrate First Class, Idar in Criminal Case No. 797 of 2001 whereby the learned Magistrate has acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter be referred to as “the N.I. Act”.
2. Brief facts of the present case, in nutshell, are that on 24.02.2001, the respondent – accused had borrowed Rs.83,000/- from the appellant – original complainant. It is alleged that after two months, the complainant demanded the said amount, accused had given a cheque bearing No.42969 dated 02.06.2001 drawn on Dena Bank, Jadar Branch, which came to be deposited by the appellant in his bank account and the same was returned with an endorsement “insufficient fund”. It is also alleged that the appellant had given notice to the respondent - accused and, thereafter, filed a complaint under Section 138 of the N.I. Act before the learned Magistrate.
2.1 After hearing the learned counsel appearing f
The presumption of innocence is reinforced in acquittal cases, with the burden of proof on the complainant to establish the enforceable debt and financial capacity.
The appellate court has the authority to review evidence in acquittal appeals, but must respect the presumption of innocence and ensure that any findings against the accused are based on substantial ....
The presumption of consideration under Sections 118 and 139 of the Negotiable Instruments Act applies unless disproven by the accused, and the burden cannot shift excessively onto the complainant.
The appellate court must respect trial court findings of acquittal unless substantial errors are demonstrated, maintaining the presumption of innocence.
Dishonour of cheque – When Complainant has not established his financial status, presumption is not available in his favour.
In a case under Section 138 of the N.I. Act, the burden of proof shifts to the appellant once the respondent raises a probable defense.
The statutory presumption under Section 139 of the Negotiable Instruments Act places the initial burden on the complainant to prove the circumstances under which the cheque was issued and that it was....
The burden of proof under Section 138 of the Negotiable Instruments Act lies on the accused to show that the cheque was not issued in discharge of any debt or liability.
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