The presumption of liability under the Negotiable Instruments Act requires the complainant to establish a prima facie case, after which the burden shifts to the accused to disprove claims. Insufficient evidence can lead to acquittal.

JUDGMENT :

1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order of acquittal dated 06.06.2023 passed by the learned Judicial Magistrate First Class, Babara, District Amreli in Criminal Case No.252 of 2020 acquitting the respondent-No.2 under Section 138 of the Negotiable Instruments Act, 1881 (‘the N.I.Act’ hereinafter).

2. The facts of the complaint is as under:

2.1. The complainant had filed the aforesaid case before the concerned Court and contended that the complainant is the resident of village Vinchiya, Taluka Gadhada, District Amreli and respondent No.2-original accused is also resident of the same village and they were having the relations through one of the nearest relative. As the respondent No.2-accused, was in a financial needs, had borrowed Rs.25 Lakh before six months before the date of issuance of the notice. At the time of borrowing the money, the respondent No.2-original accused has assured that within a period of two months, the amount would be repaid. After two months, the demand was raised, time and again, but the respondent No.2 remained fails in repaying however, the cheque of Rs.25 Lakh being No.011460 of Central Bank of India, Babara Branch was issued on 21.08.2020 in favour of the appellant-original complainant with assurance that on depositing the cheque with the Bank, the same would be honored. On the same day, the cheque was deposited in the Central Bank of India, Babara Branch in the account of the complainant, which was dishonored with the endorsement of “Insufficient Fund”, therefore, legal notice came to be issued through an advocate by the complainant on 21.08.2020. Within a prescribed period, the respondent No.2 remained fails in making the payment, therefore, the complaint came to be filed under Section 138 of the N.I.Act read with Section 142 of the N.I.Act before the Competent Court on 28.09.2020.

2.2. After recording the verification on 17.03.2021, the criminal case came to be registered and process was issued under Section 2 04 of the Code of Criminal Procedure, 1973 against the respondent No.2-original accused. The respondent No.2 appeared through an advocate therefore, plea was recorded below Exhibit 16 under Section 2 51 of the Code of Criminal Procedure, 1973, the accused had pleaded not guilty and claimed to be tried. To prove the case the learned advocate for the complainant had examined two witnesses, namely, Kathadbhai Lakshmanbhai Sorathiya-complainant below Exhibit 13 and PW-2 Prabhakar Ashokram Nikumbe below Exhibit 27. The learned advocate had also produced nine documentary evidences including the cheque, notice, etc. After filing the closing pursis, further statement under Section 313 of the Code of Criminal Procedure, 1973 was recorded and all the incriminating material was put before the respondent No.2 wherein he had pleaded false prosecution and produced evidence below Exhibit-21, which is refusal envelope of the notice, issued by the original accused to the complainant. After considering the evidence and arguments raised by the respective parties, learned trial Court had passed the judgment and order of acquittal, which is impugned before this Court.

3. Heard the learned advocate Mr.Samir Afzal Khan for the appellant and learned APP, Ms.Divyangna Jhala for the respondent-State.

4. Learned advocate Mr.Samir Afzal Khan for the appellant submits that the reasonings given by the learned trial Court is against the settled principle of law as the presumption which is in favour of the complainant under Sections 118