The trial court's failure to properly appreciate evidence warrants reconsideration of the acquittal under Section 138 of the NI Act.

ORDER :

1. The present application is filed by the applicant - original complainant under Section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as “BNSS”) seeking leave to appeal against the order dated 06.01.2025 passed by the learned Additional Chief Judicial Magistrate, Bhuj-Kachchh ( hereinafter referred to as “learned trial Court”) acquitting the respondent No. 2 - accused in Criminal Case No. 2810 of 2018 filed by the applicant for the offence under Section 138 of the Negotiable Instrument Act, 1881, hereinafter referred to as the “NI Act”).

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. Heard learned advocate Mr. Amit R. Joshi for the applicant and learned Additional Public Prosecutor Mr. Utkarsh Sharma, for the respondent State. Though served the respondent has not appeared either in person or through an advocate. Perused the judgment and order passed by the learned trial Court as well as the judgment and order passed by the learned Sessions Court.

3. Learned advocate Mr. Amit R Joshi for the applicant submits that the respondent No. 2 had taken a loan from the applicant - Gujarat State Co-Op. Agriculture And Rural Development Bank Ltd and had executed all necessary documents and an amount of Rs.1,81,208/-was outstanding, towards which, cheque No. 043857 dated 07.09.2018 from his account with Kachchh District Central Coop. Bank Ltd. was issued. The cheque was deposited by the applicant in his account with Kachchh District Central Coop. Bank Ltd, but the same returned unpaid with the endorsement “funds insufficient”. The demand statutory notice was given to the respondent No. 2, which was duly served to the respondent No. 2 but no reply was sent and the amount was not repaid within stipulated time. Hence the applicant has filed the complaint under Section 138 of the N.I. Act, before the learned Court of the Chief Judicial Magistrate First Class, Kachchh at Bhuj. After the respondent No. 2 appeared before the learned trial Court, the evidence of the applicant and the documentary evidence was produced and the respondent No. 2 stepped into the witness box and also deposed on oath and produced the some receipts of the amount that have been repaid by him. The learned trial Court did not appreciate the loan statement produced at Exh.57 as also the other documents including the mortgage deed produced at Exh. 36 and has concluded that the applicant has not proved that the amount of Rs.1,81,208/- is outstanding. Learned advocate for the applicant submits that the applicant has a good case on merits and the learned trial Court has not appreciated the documentary evidence produced on record in proper perspective and hence the application seeking leave to appeal must be granted.

4. Learned Additional Public Prosecutor, Mr. Utkarsh Sharma for the respondent-State has submitted that learned trial Court has appreciated all the evidence in proper perspective and hence, the application seeking leave to appeal must be rejected.

5. Considering the submission advanced by the learned advocate for the applicant and on perusal of the impugned judgment and order of acquittal, prima facie, it appears that the learned trial Court has not properly appreciated the evidence in proper perspective and hence, the application seeking leave to appeal deserves consideration. Consequently, the same is granted.