The trial Court's dismissal of a cheque dishonor case due to non-prosecution was erroneous as it failed to appreciate the evidence, warranting leave to appeal.

ORDER :

(S.V. PINTO, J.)

1. Heard learned advocate advocate Mr. P.P.Majmudar for the applicant and learned APP Ms. Jirga Jhaveri and perused the impugned judgment and order of acquittal.

2. The present application is filed by the applicant - original complainant under Section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking leave to appeal against the judgement and order of acquittal dated 17.01.2025 passed by the learned 3^rd Judicial Magistrate, First Class, Surat (hereinafter referred to as the trial Court, for short) in Criminal Case No. 49524 of 2018, whereby, the learned trial Court acquitted the respondent for the offence punishable under Sections 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act, for short).

1.1 The respondent 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 and respondent no.2 had business relations, and when respondent no.2 required financial assistance for personal purposes, he requested a loan from the applicant. In response, the applicant provided a hand loan, against which the respondent no.2 issued the cheque in question and the cheque was dishonored, the applicant filed a complaint under Section 138 of the N.I. Act, leading to Criminal Case No. 25956 of 2006. A settlement agreement was reached between both parties on 28.05.2018, which was notarized at Entry No. 565 of 2018. As per the settlement, the respondent no.2 undertook to repay the hand loan, and the applicant withdrew the case in Lok Adalat on 22.04.2018. In compliance with the settlement, the respondent no.2 issued five cheques totaling Rs. 20,00,000/-, drawn on the Central Bank of India, Surat. However, respondent no.2 requested for time and asked the applicant not to deposit the cheques immediately. Upon depositing them in The Adinath Co. Op. Bank Ltd., the cheques were dishonored on 07.08.2018 due to "funds insufficient" and, hence, the complainant gave a notice on 23.08.2018 but the accused did not reply to the notice nor made any payment and hence the complaint was filed before the Court of Chief Judicial Magistrate, Surat under Section 138 of the N.I.Act., which was registered as Criminal Case No. 49524 of 2018.

2.2 The accused was duly served with the summons, and thereafter, as respondent No. 2 did not appear before the learned trial Court, a non- bailable warrant came to be issued against respondent No. 2, which also remained unserved, and respondent No. 2 was successful in evading the serving of the same. Thereafter, the applicant filed an application to issue a proclamation against respondent No. 2, and after publication in Divya Bhaskar Newspaper, the respondent No. 2 appeared before the learned trial Court, and on the next date, i.e., 03.02.2020, neither the respondent No. 2 nor his advocate remained present. Thereafter, the applicant filed an application under Section 83 of the Code of Criminal Procedure, 1983, to attach the property of respondent No. 2, which was allowed, and the property of respondent No. 2 was ordered to be attached vide order dated 01.07.2021. The respondent No. 2 appeared before the learned trial Court, filing an application to stay the attachment proceedings, and the same came to be allowed vide order dated 23.02.2022. Thereafter, the applicant filed an application for issuance of a warrant against respondent No. 2 since respondent No. 2 did not remain present and did not attend the trial. The applicant has produced the affidavit of examination in chief at Exh. 4 and the matter was pending for cross examination of the applicant and for the applicant and his advocate remained vigilant and preferred a number of applications for issuance of non-bailable warrant and even though the warrants were issued, the respondent No. 2 did not appear. The stage of cros