The complainant must prove the existence of a legally enforceable debt for conviction under Section 138 of the N.I. Act, and the applicants successfully rebutted the presumption of guilt.

ORDER :

HASMUKH D. SUTHAR, J.

1. Rule. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent State.

2. By way of this application under Section 438 read with Section 442 of the Bharatiya Nyaya Suraksha Sanhita, 2023 (for short “BNSS”), the applicants have prayed for quashing and setting aside the judgment and order dated 17.03.2023 passed by the learned Judicial Magistrate First Class, Dakor, in Criminal Case No. 512/2000, whereby the Trial Court has been pleased to hold the applicants guilty for the offence punishable under Section 138 of N.I. Act and sentenced to undergo SI of one year and also directed to pay double of the cheque amount i.e. Rs.2,00,000/- towards compensation to the original complainant, as well as order dated 18.02.2025 by which learned 3^rd Addl. Sessions Judge, Nadiad, dismissed Criminal Appeal No.111/2023 and confirmed the judgment and order of conviction of learned JMFC. Hence, this Revision Application is filed.

3. Learned advocate for the applicants has taken this Court through the factual matrix arising out of the present application and submitted that, the both the courts below have erred in recording conviction though the complainant failed to prove their case. Further, the learned Courts below failed to appreciate the evidence in its true perspective though the complainant failed to prove legally enforceable debt and the defense made by the complainant was not properly examined by the trial Court. Further, the accused have rebutted presumption and complainant has failed to prove case against the applicants. Considering the aforesaid facts, the applicants have good case and arguable case. Even without entering into merit of the case, the applicants have submitted that, the applicants are in custody. However, the applicants have deposited Rs.50,000/- before the trial Court and now are ready and willing to deposit remaining amount of Rs.1,50,000/- with the learned trial Court if the sentence imposed against the applicants is suspended pending the present criminal revision application.

4. Considering the aforesaid facts, subject to the applicants depositing Rs.1,50,000/- with the learned trial Court within two weeks, issue NOTICE making it returnable on 30.04.2025. Learned APP waives service of Notice for and on behalf of respondent No.1 – State of Gujarat.

5. Pending the present criminal revision application, interim relief in terms of paragraph No.12(D) is granted and sentence imposed upon the applicants vide order dated 17.03.2023 passed by learned Judicial Magistrate First Class, Dakor, in Criminal Case No. 512/2000 as well as order dated 18.02.2025 passed by learned 3^rd Addl. Sessions Judge, Nadiad, in Criminal Appeal No.111/2023 are suspended and the applicants shall be released on bail by executing a fresh bond of Rs.10,000/- (Rupees Ten Thousand Only) each with one surety of the like amount to the satisfaction of the trial Court, on conditions that applicants:-

(a) shall not take undue advantage of liberty or misuse liberty;

(b) shall not leave India without prior permission of this Court.

(c) shall furnish the present address of residence to the Court concerned at the time of execution of the bond and shall not change the residence without the prior permission of this Court.

(d) shall proceed with the Criminal Revision Application as and when listed and shall not prolong the hearing of the same.

(e) The Trial Court shall invest the said amount in a Fixed Deposit Receipts subject to outcome of the revision.

6. The authorities will release the applicants only if they are not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.

Direct service is permitted.