JUDGMENT :

1.0. Heard Mr. Nikul Soni, learned advocate for the applicant – original complainant, Mr. Dhruv Dave, learned advocate for the respondent no.2 and Mr. Bhargav Pandya, learned Additional Public Prosecutor for the respondent State.

2.0. This application is filed under Section 378(4) of the Code of Criminal Procedure seeking leave to challenge the impugned judgment and order dated 28.02.2022 passed by the learned 10th Additional Chief Judicial Magistrate, Vadodara in Criminal Case No.24510 of 2016. By the said judgment and order, the learned Magistrate has recorded order of acquittal of the respondent no.2 – original accused for the offence punishable under Section 138 of the Negotiable Instruments Act.

3.0. The gist of the complaint as contended in the criminal case by the complainant is as under:

3.1. The complainant is running a shop in the name of Laxmi Store and the accused viz. Hemant Shah who is referred as proprietor of M/s.Vadiyawala Logistic Private Limited is running his business in the name of “ M/s. Vadiyawala Logistic Private Limited”. It is the case of the complainant that having business relationship, the complainant was knowing the accused very well. It is further alleged that the accused had requested to complainant to deliver goods and against the outstanding amount of purchase of goods, the accused had issued cheque bearing no.925949 of ICICI Bank, Suraj Plaza, Vadodara Branch dated 29.12.2015 for an amount of Rs.1,50,000/-.

3.2. It is further alleged that as instructed by the accused, the complainant had presented the aforementioned cheque on 16.1.2016 with the Bank viz. State Bank of India, Akshar Chawk Branch, Vadodara. However, the said cheque had been dishonored on 19.1.2016 with an endorsement of account closed.

3.3. In such circumstances, the complainant was constrained to raise demand notice dated 29.1.2016 which was sent on the known address of the accused. It is further contended that inspite of the aforesaid notice being duly served upon the accused, the accused had choose not to reply to such notice. Even the amount outstanding was not repaid.

3.4. The complainant was, therefore, constrained to initiate proceedings under Section 138 of the Negotiable Instruments Act by lodging complaint against the accused. The said complaint was presented before the Court of 10th Additional Judicial Magistrate, First Class, Vadodara on 09.06.2016 which was registered as Criminal Case No.24510 of 2016.

4.0. The verification of the complainant was recorded and summons came to be issued upon the accused. The accused had appeared before the learned Magistrate and plea of the accused was recorded vide Exh.21. The accused denied the case of the complainant and the learned Magistrate had proceeded with the recording of evidence. The complainant was examined at Exh.33. The complainant had also led various documentary evidence which include the disputed cheque dated 29.12.2015 at Exh.27, Bank slip dated 16.1.2016 at Exh.28, legal notice raising demand dated 29.1.2016 at Exh.29, postal slip of such notice being served by RPAD at Exh.30, the track report of the postal department at Exh.31 and track report certificate issued by postal department at Exh.19.

4.1. On the other hand, matter was fixed for recording of evidence of the accused under Section 313 of the Code of Criminal Procedure. However, the accused failed to appear and the matter was taken up for final argument. Learned Magistrate upon appreciating the evidence which has come on record and the submissions made by the learned advocates for the respective parties, proceeded to dismiss the complaint mainly on two grounds i.e. First, the learned Magistrate notice that in the cause title of the complaint, the complainant has not joined the company and has neither addressed the legal notice to the company and in such circumstances the complaint was not maintainable and Secondly the learned Magistrate arrived at a conclusion that the accused had successfully raise