The trial court's acquittal was based on improper appreciation of evidence regarding the nature of the transaction, warranting leave to appeal.

ORDER :

(S.V. PINTO, J.)

1. The present application is filed by the applicant - original complainant under Section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking leave to appeal against the order dated 30.09.2024 passed by the learned 29^th Additional Chief Judicial Magistrate, Ahmedabad acquitting the respondent No. 2 - accused in Criminal Case No. 30344 of 2017 filed by the applicant for the offence under Section 138 of the Negotiable Instrument Act, 1881.

1.1 The respondent is hereinafter referred to as “ the accused” as he stood in the original case for the sake of convenience, clarity and brevity. 2. The brief facts culled out from the memo of the present appeal as well as the record and proceedings are as under:-

2.1 The applicant had given an amount Rs.1,14,00,000/- to the respondent No. 2 towards which, forty two cheques of the amounts of Rs.2,00,000/- and Rs.4,00,000/- were issued by the respondent No. 2 from her account with Corporation Bank, Shahibaug Cross Roads Branch, Ahmedabad. The respondent No. 2 and the applicant had also entered into agreement to sale for four flats of Raj Labdhi Heritage being Flat Nos. E/104, E/204, E/203 and E/201 situated at Gandhinagar and the applicant had deposited the cheques in his account with Kotak Mahindra Bank, Ahmedabad but two cheques were returned unpaid with the endorsement “Funds Insufficient” and “Payment Stopped By Drawer”. The applicant gave the demand statutory notice on 21.03.2017 but the accused did not reply to the notice nor made any payment and hence the complaint was filed before the Court of Chief Judicial Magistrate, Ahmedabad under Section 138 of the N.I.Act., which was registered as Criminal Case No. 30344 of 2017.

2.2 The accused was duly served with the summons and the accused appeared and the plea of the accused was recorded at Exh. 11 and the entire evidence of the applicant was taken on record. After the evidence of the applicant was closed, the further statement of the accused U/s 313 of the Code of Criminal Procedure, 1973 was recorded and after hearing the arguments of both the learned advocates, the learned Additional Chief Judicial Magistrate, Ahmedabad was pleased to acquit the accused for the offence under Section 138 of the N.I.Act.

3. Heard learned advocate Mr. Sachin Vasavda for the applicant and learned Additional Public Prosecutor Ms. Dhwani Tripathi, for the respondent State. Though served, the respondent has not appeared either in person or through an advocate. Perused the judgment and order passed by the learned trial Court and the paper book produced on record.

4. Learned advocate Mr. Sachin Vasavda for the applicant submits the impugned judgment and order is passed by the learned trial Court mainly on the ground that the applicant could not prove that he has any license for money lending and that the possession of the flats for which the agreement to sale were executed was with the applicant. Learned advocate for the applicant has taken this Court through the evidence and submits that in fact in the cross examination of the applicant, it has emerged from the record that the possession of the flats were with the DRT and not with any of the parties and it is not the case of the applicant that he is a money lender. That if the documents executed between the parties which are produced on record, are perused, it is proved that the amount was not given on interest but it was given towards which, the agreement to sale for the four flats was executed. Learned advocate for the applicant further submits that the applicant has a good case on merits and hence leave to appeal must be granted.

5. Learned Additional Public Prosecutor, Ms. Dhwani Tripathi for the respondent-State has submitted that learned trial Court and the learned Sessions Judge has appreciated all the evidence in a different manner and the issue requires consideration and hence appropriate orders may be passed.

6. Considering the submissions advanced by the learned advocate for