The statutory presumption under Section 139 of the Negotiable Instruments Act must be applied in favor of the holder in due course unless effectively rebutted by the accused.

ORDER :

(S.V. PINTO, J.)

1. The present application is filed by the applicant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) seeking leave to file an appeal against the judgment and order dated 28.06.2023 passed by the learned Additional Chief Metropolitan Magistrate, Negotiable Instrument Court No.35, Ahmedabad (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 125318 of 2021, whereby the respondent Nos.1 and 2 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N I Act”).

1.1 The respondent Nos. 1 and 2 are hereinafter referred to as “the accused” as they 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 application as well as the impugned judgment and order and paper book filed by the applicant are as under:

2.1. The applicant bank filed a complaint against the accused under Section 138 of the Act, mainly contending that the accused as partnership firm had taken a loan and a loan agreement was executed and the accused had issued cheque No.001237 for ݈the amount of Rs.44,51,000/- dated 14.07.2021 from the account of the accused with Bank of Baroda. The complainant deposited the cheque in his account and the cheque was dishonored and the reason mentioned in the return memo dated 17.07.2021 was “Funds Insufficient”. The complainant sent the statutory demand notice to the accused on 13.08.2021 which was duly served on 16.08.2021 against which no reply was given and no payment was made and hence the applicant filed a criminal complaint before the Court of the Chief Metropolitan Magistrate, Ahmedabad under Section 138 of the N I Act, 1881 which was registered as Criminal Case No. 125318 of 2021.

2.2. The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded at Exhibit 05 and the evidence of the complainant was taken on record. The complainant was examined on oath and 06 documentary evidences were produced in support of his case and after the closing pursis at exhibit 08 was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused stated that the secured business loan was approved by mortgage of house of accused and has repaid the installments regularly and a total amount of Rs.9,38,000/- was paid. The facts mentioned in the examination in chief and the complaint are false and a blank cheque was given as a security for the loan and the cheque has been misused. The accused has refused to step into the witness box and after the evidence of the accused was closed the arguments of the learned advocates for both the parties were heard and by the impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the N I Act.

3. Being aggrieved and dissatisfied with the same, the applicant has preferred the present application seeking leave to appeal mainly stating that the learned Trial Court has not properly interpreted the evidence and has misread the evidence and the impugned judgment is perverse, erroneous and contrary to law.

4. Heard learned advocate Mr. P. R. Abhichandani for learned advocate Mr. C. R. Abhichandani appearing for the applicant, learned APP Ms. Dhwani Tripathi for the respondent – State and learned advocate Mr. Ambrish V. Jani for the respondent No. 1 and 2.

5. Learned Advocate Mr. P. R. Abhichandani for learned advocate Mr. C. R. Abhichandani for the applicant submits that the learned Trial Court has not appreciated that the applicant has successfully established that the cheque in question was issued by the accused from the bank account maintained by him. The original complainant has proved that the cheque was written by the accused and it was dishonoured and as the original complainant is the