IMPORTANT POINT
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.

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 for the respective parties and considering the evidence available on record, the learned Magistrate acquitted the respondent – accused for the charges levelled against him.

3. Being aggrieved by and dissatisfied with the aforesaid judgment and order of acquittal the appellant has preferred this Appeal.

4. Heard Mr.Himanish Japee, learned counsel for Mr.J. V. Japee, learned counsel for the appellant, Ms.Megha Chitalia, learned Additional Public Prosecutor for the respondent – State of Gujarat and Mr.P. B. Odedra, learned counsel for Mr.Ashish Dagli, learned counsel for the respondent - accused at length.

5. Mr.Japee, learned counsel for the appellant, while referring to the entire oral as well as documentary evidence, has assailed the impugned judgment and order and has submitted that the learned Magistrate has not taken into consideration the evidence connecting the accused to the alleged offence in its proper perspective. He has submitted that the learned Magistrate ought to have believed that the appellant has been able to prove the charges levelled against the accused. He has submitted that the appellant has produced the evidence in support of the case, however, the learned Magistrate has discarded and disbelieved the same and passed the impugned judgment and order. He has submitted that the accused has not disputed the issuance of the cheque and the signature and, therefore, he has not objected such fact. He has submitted that so far as the finding recorded by the learned Magistrate with regard to the service of notice to the accused is concerned, the accused has also not disputed the fact that the notice was not served upon him and hence, the learned Magistrate has overlooked this aspect and misread the provision of the law. He has submitted that the accused has not raised the dispute with regard to enforceable debt before the learned Magistrate and therefore the impugned judgment and order passed by the learned Magistrate is erroneous. According to his submission, the learned Magistrate ought to have convicted the accused and ought to have imposed necessary sentence. He has prayed to allow the present appeal and to quash and set aside the impugned judgment and order of acquittal.

6. Mr.Odedra, learned counsel for the respondent – accused has submitted that the learned Magistrate has not committed any error of fact and law in passing the impugned judgment and order of acquittal. He has submitted that the appellant has failed to establish the fact that he was having sufficient fund but advance the hand-loan to the accused in the year 2001. He has submitted that the appellant has not examined his father and brother as in whose presence the amount was advanced to the respondent and, therefore, the learned Magistrate has rightly discussed in para-9 o