The court granted leave to appeal, indicating that differing interpretations of evidence by lower courts necessitate further examination of the case.

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 27.02.2024 passed by the learned 4^th Additional Sessions Judge, Panchamahal at Godhra (hereinafter referred to as the “learned Trial Court”) in Criminal Appeal No. 39/2023, 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. Heard learned advocate Ms. Shweta Lodha for the applicant, learned advocate Mr. Harjotsingh Kassowal for the respondent no. 2 and learned APP for the respondent State.

3. Learned advocate Ms. Shweta Lodha for the applicant submits that the applicant and the respondent no. 2 were having business transactions and explosive substances were been purchased by the respondent no. 2. That an amount of Rs. 9,91,970/- was remaining towards which the respondent no. 2 gave cheque no. 000032 dated 20.08.2018 for RS. 6 lakhs from his account with Bank of Baroda, Halol Branch. The cheque was deposited by the applicant in his account with HDFC Bank, Godhra and the same returned with the endorsement “Funds Insufficient”. The demand statutory notice was given towards which an evasive reply was given and as the amount was not paid within the stipulated time, the applicant filed the Criminal Case No. 2473/2018 before the Chief Judicial Magistrate, Panchmahal at Godhra. After the respondent no. 2 had appeared and after the evidence of the applicant was taken on record, the learned Additional Chief Judicial Magistrate by a judgement and order dated 11.04.2023 was pleased to convict the respondent no. 2 and sentenced him to simple imprisonment of one year and ordered the respondent no. 2 to pay a compensation of Rs. 6 lakhs to the applicant within a period of 30 days and in default, simple imprisonment for three months. Being aggrieved by the same, the respondent no. 2 filed Criminal Appeal No. 39/2023 before the Sessions Court and after hearing the parties, the learned 4^th Additional Sessions Judge, Panchmahal at Godhra was pleased to allow the Criminal Appeal and acquit the respondent no. 2 from the offence under Section 138 of NI Act.

3.1 Learned advocate Ms. Shweta Lodha for the applicant submits that the main aspect for acquittal is whether the respondent no. 2 is the proprietor? and as the proprietory firm was not joined, the impugned order came to be passed. Learned advocate submits that the applicant has a good case on merits and leave to appeal may be granted.

3.2 Learned advocate Mr. Harjotsingh Kassowal has submitted that the learned Sessions Court has properly appreciated the entire evidence and considered the settled principles of law has passed the impugned judgement and order of acquittal and no interference is required and hence, the leave to appeal may be rejected.

4. Learned APP Ms. Jirga Jhaveri 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.

5. Considering the submissions of both the learned advocates for the parties as also the judgement passed by the learned Trial Court and the Sessions Court, prima facie it appears that the same evidence has been appreciated in different manner by both the Courts. The issue requires consideration.

6. 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.