The appellate court respects the trial court's discretion in evidence evaluation, intervening only in cases of gross misapprehension.

ORDER :

1. Rule. Learned APP Mr.Utkarsh Sharma waives service of notice of rule for the respondent No.3 – State.

2. Heard learned advocate Mr.Vinod Gamara for the applicant and learned APP Mr.Utkarsh Sharma for the respondent No.3 – State. The respondent No.1 is unserved and though served, the respondent No.2 has not appeared either in person or through an advocate.

3. As per the record, the notice was issued to the respondent Nos. 1 and 2 and as per the report of the Police Inspector, Anand Town Police station, while the notice was been served to the respondent No.1, it was found that Rakeshbhai Punjabhai Parmar, the proprietor of Madhuri Multi Service, has expired on 29.02.2020 and copy of the death certificate is produced along with unserved copy of notice.

4. In view of the above, learned advocate Mr.Vinod Gamara for the applicant seeks permission to delete the respondent No.1 from the cause title of the captioned criminal application as well as the criminal appeal. Permission, as prayed for, is granted. The present application stands dismissed as abated qua the respondent No.1.

5. By way of the present application, the applicant has prayed to grant leave to appeal against the judgment and order dated 28.10.2024 passed by the learned 4^th Additional Sessions Judge, Anand (hereinafter referred to as “the learned Sessions Court”) in Criminal Appeal No. 87 of 2023.

6. Learned advocate Mr.Vinod Gamara for the applicant submits that the applicant had entered into an agreement to purchase a plot from the respondent Nos. 1 and 2 and the necessary document were executed but the transaction could not be take place and the outstanding amount of Rs.20,00,000/- was to be taken back from the respondent Nos. 1 and 2, towards which, the respondent No.2 had issued cheque No.093539 dated 24.08.2017 for an amount of Rs.15,00,000/- from his account with Punjab and Sindh Bank, Anand Branch. The said cheque was deposited by the applicant in his account with State Bank of India, Anand Branch and the same had returned unpaid with the endorsement “Funds Insufficient”. The demand statutory notice was given by the applicant, which was duly served to the respondent Nos.1 and 2 but no reply was given by the respondent Nos.1 and 2 and the amount was not repaid, and hence, the applicant filed a criminal complaint under Section 138 of the N.I.Act before the Court of the Chief Judicial Magistrate, Anand, which culminated in Criminal Case No.1552 of 2017. The respondent Nos.1 and 2 were duly served with the summons and they appeared before the learned Additional Chief Judicial Magistrate, Anand and the entire evidence of the applicant was taken on record. The learned 4^th Additional Chief Judicial Magistrate, Anand was pleased to convict the respondent No. 2 for the offence punishable under Section 138 of the N.I.Act by impugned judgment and order dated 15.02.2023 and sentenced him to simple imprisonment of one year and fine of Rs.22,50,000/-, which was to be paid as compensation and in default, simple imprisonment of six months.

6.1. Being aggrieved and dissatisfied with the judgment and the order of conviction passed by the learned 4^th Additional Chief Judicial Magistrate, Anand, the respondent Nos.1 and 2 filed Criminal Appeal No.87 of 2023 before the learned Sessions Court, Anand and after hearing the arguments of both the parties, the learned Sessions Court was pleased to quash and set aside the impugned judgment passed by the learned 4^th Additional Chief Judicial Magistrate, Anand and acquit the respondent No.2 by the impugned judgment and order dated 28.10.2024. Learned advocate for the applicant submits that the applicant had proved that a legally enforceable debt was outstanding and the transaction that was entered into between the applicant and the respondent Nos. 1 and 3 was a valid transaction and the cheque in question was duly signed by the respondent No.2. That all the receipts by which the amount was paid have been produced and the receipts have be