The burden of proof under Sections 138 and 139 of the Negotiable Instruments Act rests on the complainant, and the court must acquit if reasonable doubt about debt validity exists.

JUDGMENT :

1. This appeal is filed under Section 378 of the Code of Criminal Procedure, challenging the judgment and order of acquittal dated 13.01.2023 passed by the learned 3rd Addl. Judicial Magistrate First Class, Deesa Criminal Case No.806 of 2018.

2. The case of the complainant is that complainant wants to purchase the land of the Respondent No.2, original accused. However, there was a restrictions under the Section 73AA of the Bombay Land Revenue Code,1879, therefore, it was conveyed by the accused that without sanction of the Competent Authority, restricted land cannot be transferred. However, assurance was given that he would seek the permission and necessary procedure would be followed and thereafter, the land would be transferred that towards the sale consideration of the land, Rs. 7 Lacs was given in the presence of the witnesses to the Respondent No.2, original accused. By lapse of time, procedure for seeking the permission was not initiated, therefore, the complainant demanded the money of the sale consideration back and for that, Respondent No.2- accused had issued the cheque of Dena Gramin Bank, Aakhol Char-rasta (Deesa) Branch, bearing No.2498844 dated 20th August, 2017. On the said cheque, the thumb impression was made by respondent-accused and assurance was given that the cheque would be honored in favour of the complainant. On depositing the cheque with the Bank on 13rd September, 2017 with Dena Gramin Bank, Aakhol Char-rasta (Deesa) Branch, which was returned with the endorsement of the “fund insufficient” on 14th September, 2017. On informing with regard to dishonoring of the cheque, a notice was issued on 3.10.2017, which was served, as per the information given by the Postal Department on 5.10.2017. As amount of cheque was not paid, private complaint, under Section 138 of the Negotiable Instruments Act read with Section 142 of the said Act. came to be filed before the Competent Court, which was given number as a Criminal Inquiry Case No.146/2017. On recording the plea and prima-facie considering the evidence, learned Court had ordered to register the Criminal Case and to issue the process under Section 204 of the Code of Criminal Procedure, 1973. To prove the case, the complainant had examined the 4 witnesses and produced 10 documentary evidences. On filing the closing pursis, further statement under Section 313 of the Code of Criminal Procedure was recorded wherein, the defence was raised by the accused that thumb impression, which is on the cheque i.e. Exh.48, was not made by the accused and the thumb impression was taken from the other person, therefore, he prayed to send the cheque for examination with finger print experts. To prove his defence, complainant had examined 3 witnesses and produced 7 documentary evidences. The learned trial Court, after considering the evidence placed by both the parties and the arguments advanced by the learned advocates, comes to the conclusion that the complainant failed to prove the case against the respondent-accused under Section 138 of the Negotiable Instruments Act and therefore, the judgment and order of the acquittal was passed on 13.1.2023, which is the subject matter of challenge before this Court.

3. Heard the learned advocate, Mr.K.B.Virvadiya, for the appellant. Learned advocate for the appellant, original complainant submitted that though accused had put the prima-facie case against the respondent-accused and though presumption, which is in favour of the complainant provided under Sections 118 and 139 of the Negotiable Instruments Act, wa