The differing appreciation of evidence by lower courts necessitates further consideration of the applicant's appeal regarding the dishonor of cheques under Section 138.

ORDER :

1. Rule. Learned APP Mr.Utkarsh Sharma waives service of notice of rule for the respondent – State.

2. Heard learned advocate Mr.Pushpadatta Vyas for the applicant and learned APP Mr.Utkarsh Sharma for the respondent No.1 – State.

3. By way of the present application, the applicant has prayed to grant leave to appeal against the judgment and order dated 22.10.2024 passed by the learned 3^rd Additional Sessions Judge, Bharuch (hereinafter referred to as “the learned Sessions Court”) in Criminal Appeal No. 24 of 2024.

4. Learned advocate Mr.Vyas for the applicant submits that the applicant and the respondent No.1 had entered into a transaction to purchase land situated in village Kangam, Taluka Jambusar and the amount of agreement to sell to the tune of Rs.5,00,000/- and Rs.2,00,000/- was paid to the respondent No.1. That as the sale transaction could not be take place between the applicant and the respondent No.1, the respondent No.1 had agreed to return the amount, towards which, cheque No.146924 for an amount of Rs.5,00,000/- and cheque No.146923 for an amount of Rs.2,00,000/- dated 30.06.2015 from his account with State Bank of India, Petrochemical Vadodara Branch were issued. The said cheques were deposited by the applicant in his account with The Bharuch District Central Cooperative Bank, Bharuch 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 No.1 but no reply was given by the respondent No.1 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, Jambusar. The respondent No.1 was duly served with summons and appeared before the learned Additional Chief Judicial Magistrate, Jambusar and the entire evidence of the applicant was taken on record. The learned Additional Chief Judicial Magistrate, Jambusar was pleased to convict the respondent No.1 for the offence punishable under Section 138 of the N.I.Act by impugned judgment and order dated 29.12.2023 and sentenced him simple imprisonment of one year and fine of Rs.7,00,000/-, which was to be paid as compensation to the applicant and in default, simple imprisonment of three months.

4.1. Being aggrieved and dissatisfied with the judgment and the order of conviction passed by the learned Chief Judicial Magistrate, Jambusar, the respondent No.1 filed Criminal Appeal No.24 of 2024 before the Sessions Court, Bharuch and after hearing the arguments of both the parties, the learned Sessions Court was pleased to acquit the respondent No.1 by the impugned judgment and order dated 22.10.2024. Learned advocate for the applicant submits that the applicant had proved that the legally enforceable debt was outstanding and the transaction that was entered into between the parties was a valid transaction and a copy of the agreement to sell was produced at Exh.27. That all the oral as well as documentary evidence were appreciated by the learned Chief Judicial Magistrate, Jambusar but the same evidence has not been appreciated by the learned Sessions Court in proper perspective. The applicant has a good case on merits, and therefore, the present leave to appeal may be allowed.

5. Learned APP Mr. Utkarsh Sharma for the respondent No.1 – State submits that the learned Sessions 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 Sessions Court and the present application may be rejected.

6. Having heard advocates for the respective parties as also on perusal of the the impugned judgment and order passed by the learned Chief Judicial Magistrate, Jambusar as well as learned Sessions Court, Bharuch, prima-facie, it appears that both the Courts below have appreciated the same set of oral as well as documentary evidence in its o