The presumption under Section 139 of the Negotiable Instruments Act is rebuttable, and the accused must raise a probable defense to contest the existence of a legally enforceable debt.

ORDER :

1. The present application is filed by the applicants – legal heirs of the original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) seeking leave to file an appeal against the judgment and order dated 06.10.2021 passed by the learned 24^th Additional Chief Judicial Magistrate, Surat (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 9016 of 2017, whereby the respondent No. 2 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the NI Act”).

1.1 The parties are hereinafter referred to as “the complainant” and “the accused” as they 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 application as well as the impugned judgment and order and paper book filed by the applicant are as under:

2.1 The complainant filed a complaint against the accused under Section 138 of the Act, mainly contending that the accused had taken a loan of Rs. 20,00,000/- from the applicant on 19.11.2010 for business purposes at the rate of 1% interest and an agreement was executed and the accused had issued cheque No.515618 for the amount of Rs. 25,00,000/- dated 12.01.2017 from his account with Bank of Baroda, City Light Branch, Surat. The complainant deposited the cheque in his bank and the cheque was dishonored and the reason mentioned in the return memo dated 17.01.2017 was “Account Closed”. The complainant sent the statutory demand notice to the accused on 15.02.2017 and no payment was made and hence the complainant filed a criminal complaint before the Court of the Additional Chief Judicial Magistrate, Surat under Section 138 of the N I Act, 1881 which was registered as Criminal Case No. 9016 of 2017.

2.2 The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded at Exhibit 09 and the evidence of the complainant was taken on record. The complainant and witness Rajeshkumar Sheshmani Parmar were examined on oath and 09 documentary evidences were produced in support of the case and after the closing pursis at Exhibit 35 was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused stated that as per evidence produced at exhibit 14 the applicant has no right to send the statutory notice and the cheques were obtained illegally and have been forged. The facts mentioned in the examination in chief and in the complaint are false and a false complaint has been filed and a complaint filed by the husband of the accused dated 25.03.2017 is produced. The accused refused to step into the witness box and after the evidence of the accused was closed the arguments of the learned advocates for both the parties were heard and by the impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the NI Act.

3. Being aggrieved and dissatisfied with the same, the applicants – legal heirs of the original complainant have preferred the present application seeking leave to appeal mainly stating that the learned Trial Court has not properly interpreted the evidence and has misread the evidence and the impugned judgment is perverse, erroneous and contrary to law.

4. Heard learned advocate Mr. Jitendra H. Singh appearing for the applicants, learned APP Mr. Bhargav Pandya for the respondent – State and learned advocate Mr. Nisarg Shah for Ms. Ashlesha M. Patel for Respondent No. 2.

5. Learned Advocate Mr. Jitendra H. Singh for the applicants submits that the learned Trial Court has n