The court found that the trial Court's failure to properly appreciate evidence justified granting leave to appeal against the acquittal under Section 138 of the Negotiable Instrument Act.

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 seeking leave to appeal against the order dated 24.09.2024 passed by the learned Additional Chief Judicial Magistrate, Ahmedabad acquitting the respondent No. 2 - accused in Criminal Case No. 53477 of 2017 filed by the applicant for the offence under Section 138 of the Negotiable Instrument Act, 1881.

1.1 The respondent No. 2 is hereinafter referred to as “ the accused” as he 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 appeal as well as the record and proceedings are as under:-

2.1 The applicant alleged that she had given Rs. 1,75,000/- to respondent No. 2, out of which Rs. 50,000/- was taken from her mother, Ansuyaben Babulal Jagtap, and the remaining Rs. 1,25,000/- was from her personal savings. The respondent No. 2 issued cheque No. "212259" in favour of the applicant, which was deposited in Union Bank, Odhav, Ahmedabad, on 14.06.2017. The cheque was returned unpaid with the endorsement “Payment Stopped By Drawer.” A statutory demand notice was issued on 07.07.2017 through RPAD, and the tracking report showed it was delivered. However, the trial Court did not believe the tracking report and held that service of notice was not proved. The trial Court also observed that the applicant had not proved her financial capacity. Consequently, the respondent No. 2 did not make the payment and hence, the applicant filed a complaint under Section 138 of the N.I. Act before the Metropolitan Magistrate, Ahmedabad, registered as Criminal Case No. 53477 of 2017.

2.2 The accused was duly served with summons and appeared in Court. The plea was recorded, and the evidence of the applicant was taken. After closing the evidence of the applicant , the further statement of the accused was recorded under Section 313 of the Cr.P.C. After hearing arguments, the learned Additional Chief Judicial Magistrate acquitted the accused under Section 138 of the N.I. Act.

3. Heard learned advocate Mr. Hardik Rawal for the applicant and learned Additional Public Prosecutor Ms. Dhwani Tripathi for the respondent State. Despite being served, the respondent did not appear either in person or through an advocate. The judgment and order of the learned trial Court has been perused.

4. Learned advocate Mr. Hardik Raval has submitted that the applicant had given Rs. 1,75,000/- to respondent No. 2, for which cheque No. "212259" was issued and the cheque was dishonored with the endorsement “Payment Stopped By Drawer.” Despite proper service of notice, the learned trial Court has acquitted the accused. The applicant has a good case on merits, and hence, leave to appeal must be granted.

5. Learned Additional Public Prosecutor, Ms. Dhwani Tripathi, submitted that the learned trial Court has appreciated the evidence properly and hence, appropriate orders may be passed.

6. Considering the submissions of the learned advocate for the applicant and upon perusal of the paper book, tracking report, and other documents, it appears that the trial Court has not appreciated the documents properly. Hence, leave to appeal is required to be granted. Consequently, the application is allowed.