The court affirmed that the applicant failed to establish a legally enforceable debt under Section 138 of the NI Act, leading to the dismissal of the appeal for leave.

ORDER :

1. The present application is filed by the applicant-original complainant under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short “BNSS”) seeking leave to file an appeal against the judgment and order dated 04.12.2024 passed by the learned 2^nd Additional Chief Judicial Magistrate, Amreli (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 1427 of 2019, 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 N I Act”).

1.1 The respondent No 2 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 application as well as the impugned judgment and order and paper book filed by the applicant are as under:

2.1 The applicant filed a complaint against the accused under Section 138 of the Act, as the accused had a debt payable of Rs. 3,80,000/- to the applicant arising out of partnership with the applicant and the accused had issued cheque No.273597 for the amount of Rs. 1,50,000/- dated 19.08.2019 from his account with Axis Bank, Rajkot Branch. The applicant deposited the cheque on 27.08.2019 in his account with Bank of India and the cheque was dishonored. The accused issued another cheque No.273598for the amount of Rs. 1,00,000/- dated 29.08.2019. The applicant deposited the cheque on 03.09.2019 in his account and the same was dishonored and the reason mentioned in the return memo dated 04.09.2019 was “Balance Insufficient.” The applicant sent the statutory demand notice to the accused on 26.09.2019 by R.P.A.D which was duly served on 28.09.2019 and no payment was made and hence the applicant filed the criminal complaint before the Court of the Additional Chief Judicial Magistrate, Amreli under Section 138 of the N I Act, 1881 which was registered as Criminal Case no. 1427 of 2019.

2.2 The accused was served with the summons and the accused appeared before the learned Trial Court and his plea was recorded at exhibit 09 and the evidence of the applicant was taken on record. The applicant was examined on oath and 09 documentary evidences were produced in support of his case and after the closing pursis was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused did not remain present and the right of further statement 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 applicant has 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. N.P. Pandya appearing for the applicant and learned APP Mr. Bhargav Pandya for the respondent-State.

5. Learned Advocate Mr. N.P. Pandya for the applicant submits that the learned Trial Court has not appreciated that the applicant has successfully established that the cheque in question was issued by the accused from the bank account maintained by him. The applicant has proved that the cheque was written by the accused and it was dishonoured and as the applicant is the holder in due course of the cheque in question the statutory presumption under Section 139 of the NI Act is to be drawn in favour of the applicant. The learned Trial Court has not appreciated the provisions of Section 118 and 138 of the NI Act in proper perspective. The oral contract is not negated by the accused and the fact of the amount paid by the applicant to the accused is also not negated, but the learned Trial Court has disbelieved t