IMPORTANT POINT
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 grounds.

JUDGMENT :

1. The present appeal is filed by the appellant – original complainant under Section 378 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) against the judgment and order of acquittal dated 03/10/2008 passed by the learned Additional Sessions Judge, Court No.6, Ahmedabad (hereinafter referred to as “the first appellate court”) in Criminal Appeal No.149 of 2007, whereby, the learned Judge has acquitted the original accused respondent No.2 herein for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short “the N.I. Act”).

2. The brief facts giving rise to the present appeal are that, the appellant had advanced an amount of Rs.33,000/- top the respondent accused way back in the year 1992, against which, the respondent accused had issued a cheque to the tune of Rs.25,000/- on 10/02/2001. On being presented before the bank, the said cheque returned with an endorsement ‘insufficient funds’ and therefore, on 01/08/2001, the appellant had issued a statutory legal notice to the respondent accused under the provisions of Section 138 of the N.I. Act., one by U.P.C. and another by Registered Post A.D. The notice sent by Registered Post A.D. returned on 09/08/2001 with an endorsement ‘the owner is not found’ and the notice sent by U.P.C. was served upon the respondent accused, however, the respondent accused had neither given any reply to the notice nor he had made payment of the cheque amount, and therefore, the appellant had filed a criminal complaint before the Metropolitan Magistrate, Court No.3, Ahmedabad, being Criminal Case No.1649 of 2001, whereby, the competent court had convicted the respondent accused for the alleged offence under Section 138 of the N.I. Act vide judgment dated 12/10/2007, and he was ordered to undergo simple imprisonment for a period of one year and also imposed fine of Rs.5,000/- and in default of payment of fine, further three months’ simple imprisonment was imposed. Being aggrieved and dissatisfied with the said judgment of conviction, the respondent accused had preferred Criminal Appeal No.149 of 2007 before the learned City Sessions Judge, Ahmedabad, which came to be allowed vide judgment and order dated 03/10/2008 and the respondent accused was acquitted from the charges levelled against him.

2.1 Being aggrieved and dissatisfied with the impugned judgment and order of acquittal dated 03/10/2008 passed by the learned Additional Sessions Judge, Court No.6, Ahmedabad in Criminal Appeal No.149 of 2007, the appellant complainant has preferred present Criminal Appeal under Section 378 of the Criminal Procedure Code, 1973.

3. Heard learned advocate Mr.Suraj Mateida, appearing on behalf of Mr.P.P. Majmudar, learned advocate for the appellant – original complainant, learned APP Ms.Jyoti Bhatt, appearing on behalf of the respondent No.1 – State of Gujarat and learned advocate Mr.Chinmay Gandhi, appearing on behalf of the respondent No.2 – original accused.

4. Learned advocate Mr.Mateida has submitted that the first appellate court has committed a serious error of law and on facts while passing the impugned judgment and order of acquittal. He has submitted that the first appellate court has disbelieved the case of the present appellant on the ground that the appellant has failed to establish that the impugned cheque was drawn against the legal enforceable debt. He has submitted that the said fact was not properly appreciated by the first appellate court and the findings recorded based upon such facts is completely erroneous, illegal and unjust. He has further submitted that the documentary evidence viz., the diary maintained by the appellant was completely ignored and overlooked by the first appellate court which was in nature of evidence in which the entry was made for advancing hand loan to the respondent accused, however, the first appellate court has failed to appreciate the same while passing the impugned judgment and order of acquittal. Over and above the gr