The trial court's failure to properly appreciate evidence led to the granting of leave to appeal against the acquittal under Section 138 of the Negotiable Instruments Act.

ORDER :

(S.V. PINTO, J.) 

Heard learned advocate Mr. Johnsey P Mackwan for the applicant and Ms. Dhwani Tripathi learned Additional Public Prosecutor for the respondent-State.

1. The present application is filed by the applicant – original complainant under Section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “ BNSS ”) seeking leave to file an appeal against the order dated 31.08.2024 passed by the learned 4^th Additional Chief Judicial Magistrate, Anand (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 5624 of 2022 whereby the respondent - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the NI Act”).

2. The applicant submits that the respondent No. 2 had taken an amount of Rs.8,00,000/- from the applicant towards which the respondent No. 2 had issued cheque No. “208059” dated 24-08-2022, from his account with Axis Bank, Vallabh Vidhyanagar Branch. The cheque was deposited by the applicant in his account with Bank of Baroda, Vasad Branch but the cheque returned unpaid with the endorsement “Drawer's Signature Differs”. The applicant gave the demand statutory notice, which was duly served to the respondent No. 2, but the respondent No. 2 did not pay up the amount and hence the applicant filed the criminal case under Section 138 of the Negotiable Instruments Act, before the Court of the Chief Judicial Magistrate, Anand, which was registered at Criminal Case No. 5624 of 2022.

2.1 The summons was duly served to the respondent No. 2 and he appeared and after his plea was recorded, the evidence of the applicant was taken on record. The applicant produced all the documentary evidences and proved his financial capacity to pay the amount. That, after the further statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 , the respondent No. 2 stepped into the witness box, and filed his affidavit of examination-in-chief and raised a defence, which was completely falsified in his cross examination. The respondent No. 2 had mainly denied and had stated that the cheques in question were given to some other person, and that he had also filed a complaint with the Anand Town Police Station, but the entire defence of the respondent No. 2 was falsified during the cross examination.

3. Learned advocate for the applicant submits that even though the evidence was produced, the learned trial Court did not appreciate the same in true perspective and the respondent No. 2 did not examine any other witnesses including Sumeet Patel and Ashokbhai Parmar. Learned advocates further submits that, the applicant has a good case on merits, and as the evidence has not been properly appreciated, the application seeking need to appeal must be granted.

4. Learned Additional Public Prosecutor appearing for the respondent -State submits that necessary orders may be passed.

5. Consider in the submissions of the learned advocate for the applicant, as also the paper book produced by the learned advocate for the applicant, it appears that the entire evidence produced by the parties on record, has not been properly appreciated by the learned trial Court, and the application deserves consideration. Consequently, the application leave to appeal is allowed.