The trial court's acquittal was unjustified due to improper appreciation of evidence and failure to challenge party involvement, warranting leave to appeal.

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 31.01.2025 passed by the learned Judicial Magistrate First Class, Kathlal, (hereinafter referred to as “learned trial Court”) acquitting the respondent No. 2 - accused in Criminal Case No. 72 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. Varun C. Dastoor for the applicant and learned Additional Public Prosecutor Mr. Utkarsh Sharma, for the respondent State. Though served the respondent No. 2 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. Varun C. Dastoor for the applicant submits that the applicant had paid various amounts on various dates to the respondent No. 2, which was deposited in cash in his account with Kotak Mahindra Bank as the respondent No. 2 required financial assistance for his business and when the amount was demanded from the respondent No. 2, cheque No. “000242” dated 29.02.2017 for Rs.2,25,000/- from his account with Kotak Mahindra Bank was given. The cheque was deposited by the applicant in his account with State Bank of India, Mahuda Branch 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 the respondent No. 2 did not sent any reply and did not repay the amount within stipulated time. Hence the applicant has filed the complaint under Section 138 of the N.I. Act, before the learned Court of Judicial Magistrate First Class, Kathlal. After the respondent No. 2 appeared before the learned trial Court, the plea of the respondent No. 2 was recorded and thereafter, the respondent No. 2 did not appear before the learned trial Court. The applicant had submitted all oral as well as documentary evidence on record, which was duly exhibited. The applicant had produced the evidence that the amounts deposited in cash in account being A/c No.”08332000000293” of the respondent No. 2 with Kotak Bank and from the same account, the cheque in question was drawn. The respondent No. 2 did not appear before the learned trial Court and the stage of cross-examination was closed and even though the the evidence produced by the applicant was not challenged, the learned trial Court was pleased to pass impugned judgment and order of acquittal solely on the ground that the applicant has not joined the “Patel Carting” as a party to the proceedings. Learned advocate submits that the issue was not challenged and if the receipts are perused, they all are deposited in the account of Patel Carting, but the learned trial Court has wrongly come to the conclusion that the Patel Carting was company. 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. Learned advocate submit that 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 and paper book annexed with the application, prima facie, it appears that withou