The court emphasized the necessity for the Trial Court to properly appreciate all evidence and documents, leading to the granting of leave to appeal against acquittal under Section 378(4) of the Code of Criminal Procedure.

ORDER :

(S. V. PINTO, J.)

1. The present application is filed by the applicant – original complainant under Section 378(4) of Code of Criminal Procedure, 1973 seeking leave to file an appeal against the judgement and order dated 17.09.2024 passed by the learned 28^th Additional Chief Judicial Magistrate, Ahmedabad City (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 3900091/2016, whereby, the learned Trial Court was pleased to acquit the accused from the offence under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to “the NI Act” for short).

2. Learned advocate Mr. Kartik Pandya for the applicant submits that the applicant has given an amount of Rs. 10 lakhs to the respondent no. 2 towards which the respondent no. 2 had issued cheque no. 636123 from his account with DCB Bank, Vejalpur Branch, Ahmedabad for Rs. 10 lakhs. The applicant has proved his financial capacity as he had earlier sold his agricultural land for Rs. 3,48,28,761/- vide a registered sale deed on 27.05.2015 and when he had deposited the cheque in his name, the same returned unpaid with the endorsement “Account Closed”. The demand statutory notice was given and the amount was not paid and hence, the complaint under Section 138 of the NI Act was filed in the Court of Chief Judicial Magistrate, Ahmedabad (Rural). After the evidence of the applicant was taken on record, the learned Trial Court was pleased to conclude that the return memo was not proved and that the notice was not duly served to the respondent no. 2. Learned advocate submits that the applicant has examined witness – Vivekkumar Mayaram Yadav of the bank to prove the other documents and the notice was sent to the respondent no. 2 at the same address mentioned in the complaint and on the same address, the summons of the Court has been served. Learned advocate submits that learned Trial Court has not appreciated the documents in proper perspective and the applicant has a good case on merits and the application for leave to appeal may be granted.

3. Learned APP Ms. Dhwani Tripathi for the respondent State has submitted that the learned Trial Court has considered all the documents produced by the applicant and has also considered the evidence and has passed the impugned order of acquittal considering the settled principles of law and hence, the leave to appeal may not be granted.

4. Considering the submissions of learned advocate for the applicant and the paper book submitted on record, it appears that the address mentioned in the notice is also the same address mentioned in the complaint. The witness from the bank has been examined to prove the documents and the summons was issued on the same address mentioned in the complaint. The learned Trial Court has not appreciated the entire evidence in proper perspective and the leave to appeal requires consideration.

5. In the peculiar facts and circumstances of the case in the considered opinion of this Court the application deserves to be considered. Consequently, the application for leave to appeal is granted and disposed off accordingly.