The trial court's failure to properly appreciate evidence can lead to a successful challenge against an acquittal under Section 138 of the Negotiable Instruments Act.

ORDER :

1. Heard learned advocate Dr.Hiren S. Somaiya for the applicant and learned APP Ms. Jirga Jhaveri for the respondent – State.

2. By way of the present application, the applicant has prayed to grant leave to appeal against the judgment and order dated 27.07.2024 passed by the learned Additional Chief Judicial Magistrate, Gondal in Criminal Case No.1535 of 2022.

3. Learned advocate Dr.Hiren S. Somaiya for the applicant submits that the applicant and the respondent No.2 have business relations and an amount of Rs.13,30,000/- wad due from the respondent No.2. On demanding the same, the respondent No.2 gave cheque No.002677 dated 24.03.2022 for an amount of Rs.11,00,000/- of his account with ICICI Bank, Mavdi Circle Branch. On depositing the said cheque by the applicant in his account with the Bank of Baroda, Mandvi Chowk Branch, the same has returned unpaid with the endorsement “Payment Stopped by Drawer”. The applicant had given the demand statutory notice to the respondent No.2, which was duly served and the amount was not repaid by the respondent No.2, hence, the applicant filed a criminal case under Section 138 of the Negotiable Instrument Act before the Court of the Additional Chief Judicial Magistrate, Gondal. The respondent No.2 appeared and after the evidence of the applicant was taken on record, the further statement of the respondent No.2 under Section 313 of the Code of Criminal Procedure was recorded and the respondent No.2 has stepped into the witness box and was examined on oath at Exh.50. It was the defence of the respondent No.2 that the cheque was given to the petrol pump and on the letter pad of the dealer of Bharat Petroleum is produced at Exh.54. Learned advocate for the applicant submits that the document does not specify who had taken the cheque from the petrol pump and nobody has been examined on behalf of he petrol pump. Moreover, the defence raised by the respondent No.2 has not been successfully rebutted and the learned Additional Chief Judicial Magistrate, Gondal was pleased to acquit the respondent No.2 by the impugned judgment and order dated 27.07.2024. The applicant has a good case on merits, and therefore, the present leave to appeal may be allowed.

4. Learned APP Ms. Jirga Jhaveri for the respondent – State submits that the learned Trial Court has appreciated all the documents in proper perspective and therefore, no interference of this Court is required in the impugned judgment and order of acquittal passed by the learned Trial Court and the present application may be rejected.

5. Having heard advocates for the respective parties and considering the submission made by the parties as also the documentary evidence produced by the applicant, prima-facie, it appears that the learned Trial Court has not appreciated the oral and the documentary evidence in proper perspective, and hence, the present application requires consideration and accordingly, is allowed.