IMPORTANT POINT
The appellate court can review acquittals but must uphold the presumption of innocence unless clear evidence of error exists in the trial court's decision.

JUDGMENT :

HEMANT M. PRACHCHHAK, J.

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 31/07/2007 passed by the learned 2nd Additional Senior Civil Judge & Judicial Magistrate, First Class, Bharuch (hereinafter referred to as “the trial court”) in Criminal Case No. 10502 of 2005, whereby, the learned Judge has acquitted the original accused respondent No. 1 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 complainant had advanced an amount of Rs.60,000/- to the respondent accused on 15/01/2004, against which, the respondent accused had given an advance cheque in favour of the appellant being cheque no. 13370 dated 28/02/2005 drawn on Bharuch District Central Co-operative Bank Ltd. Vejalpur branch alongwith a prescribed form no. 8, wherein, certain terms and conditions of loan were also enumerated and therefore, the appellant had accepted the said cheque. It is the case of the appellant that, as the respondent had not refund the loan amount therefore, the appellant had deposited the cheque in his account on 12/03/2005, which returned with an endorsement ‘Funds Insufficient’ and therefore, the appellant had issued a statutory legal notice to the respondent accused on 18/03/2005, which was served upon the respondent accused on 23/03/2005, however, neither the respondent accused had given any reply to the notice nor he had made payment of the loan amount as demanded by the appellant and therefore, the appellant had filed a criminal complaint in the court of Judicial Magistrate, Bharuch, which was numbered as Criminal Case No. 10502 of 2005. On receipt of the summons, the respondent accused appeared before the trial court. After considering the relevant material and after considering the arguments advanced by both the sides, the trial court has acquitted the respondent accused from the charges levelled against him vide impugned judgment and order dated 31/07/2007.

3. Being aggrieved and dissatisfied by the judgment and order dated 31/07/2007, the appellant has preferred present Criminal Appeal under Section 378 of the Criminal Procedure Code, 1973.

4. Heard learned advocate Ms. Shaili Kapadia, appearing on behalf of the appellant- original complainant and learned APP Ms. Jyoti Bhatt, appearing on behalf of the respondent No. 2-State of Gujarat.

4.1 This Court had issued notice to the respondent No. 1-original accused at the time of admission, however, it seems that till date, there is no progress with regard to service of notice upon the respondent accused. On last occasion also, this Court had issued fresh notice and also allowed the appellant to serve through direct service, however, it seems that there is nothing further came on record and therefore, the present appeal is proceeded in absence of the respondent accused and decided on merits.

5. Learned advocate Ms. Kapadia has submitted that the impugned judgment and order of acquittal is erroneous, illegal and unjust as it was against the facts and settled principles of law and therefore, the trial court has committed a serious error of law and on facts while passing the impugned judgment and order of acquittal. She has submitted that the trial court has not properly appreciated the facts of the case while passing the impugned judgment and order of acquittal. She has submitted that the trial court has not properly appreciated the evidence adduced by the appellant complainant before the trial court in its true and proper spirit and rejected the case of the complainant only on the ground that the officer who had initiated the proceedings was not an authorized officer and no evidence was produced on record and the issuance of proceedings was time barred and on that count also, the findings recorded