The conviction under Section 138 of the N.I. Act was overturned due to the complainant's failure to prove a legally enforceable debt.

ORDER :

1. By way of this application under Section 438 read with Section 442 of the Bharatiya Nyaya Suraksha Sanhita, 2023 (for short “BNSS”), the applicant has prayed for quashing and setting aside the judgment and order dated 27.10.2023 passed by the learned learned Additional Chief Judicial Magistrate, Jambusar in Criminal Case No.830 of 2018, whereby the Trial Court has been pleased to held the applicant guilty for the offence punishable under Section 138 of N.I. Act and sentenced to undergo SI of one year and also directed to pay Rs.3,00,000/- towards compensation to the original complainant, as well as order dated 18.02.2025 by which learned 2nd Additional Sessions Judge, Bharuch dismissed Criminal Appeal No.354 of 2023 and confirmed the judgment and order of conviction dated 27.10.2023 of learned trial Court. Hence, this Revision Application is filed.

2. Heard learned advocate for the applicant.

3. Learned advocate for the applicant has taken this Court through the factual matrix arising out of the present application and submitted that, the both the courts below have erred in recording conviction though the complainant failed to prove his case. Further, the learned Courts below failed to appreciate the evidence in its true perspective though the complainant failed to prove legally enforceable debt and the defense made by the complainant was not properly examined by the trial Court. It is submitted that the applicant has given cheque/s to the brother of the complainant for security purpose and the same has been misused by them. There is serious allegations qua existence of legally enforceable debt. Further, the accused has rebutted presumption and complainant has failed to prove case against the applicant. It is submitted that offence is bailable and compoundable, therefore, the present application deserves consideration. Considering the aforesaid facts, the applicant has good case and arguable case. Even without entering into merit of the case, the applicant has submitted that he is in custody since 18.02.2025. However, learned advocate for the applicant has submitted that the applicant has deposited an amount of Rs.60,000/- before the concerned Court/ learned Sessions Court and now is ready and willing to deposit remaining 80% amount i.e. an amount of Rs.2,40,000/- with the concerned Court / learned Sessions Court if the sentence imposed against the applicant is suspended pending the present criminal revision application.

4. Considering the aforesaid facts, subject to the applicant depositing remaining 80% i.e. an amount of Rs.2,40,000/- with the learned Sessions Court/concerned Court within two weeks from today, issue NOTICE making it returnable on 24.04.2025. Learned APP waives service of Notice for and on behalf of respondent No.1 – State of Gujarat. Private respondent to be served through concerned police Station.

5. Pending the present criminal revision application, interim relief in terms of paragraph No.8(D) is granted and sentence imposed upon the applicant vide impugned judgment and order dated 27.10.2023 passed by the learned learned Additional Chief Judicial Magistrate, Jambusar in Criminal Case No.830 of 2018, as well as order dated 18.02.2025 by which learned 2nd Additional Sessions Judge, Bharuch dismissed Criminal Appeal No.354 of 2023 are suspended and the applicant shall be released on bail by executing a fresh bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the trial Court, on conditions that applicant:-

(a) shall not take undue advantage of liberty or misuse liberty;

(b) shall not leave India without prior permission of this Court.

(c) shall furnish the present address of his residence to the Court concerned at the time of execution of the bond and shall not change the residence without the prior permission of this Court.

(d) shall proceed with the Criminal Revision Application as and when listed and shall not prolong the hearing of the same.

(e) shall