The presumption of a cheque being for discharge of a debt is rebuttable, and the applicant failed to prove the cheque represented a legally enforceable debt.

ORDER :

(S. V. PINTO, J.)

1. The present application is filed by the applicant – 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 08.02.2024 passed by the learned 7^th Additional Chief Judicial Magistrate, Rajkot in Criminal Case No. 16396 of 2022, whereby the original accused – respondent No. 2 herein came to be acquitted from the charge levelled against him under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the NI Act”). 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 are as under:

2.1. The applicant has the business of finance in the name of Suryadeep Finance in Rajkot and the accused had taken a loan of Rs.3,00,000/- on 03.01.2022 and had executed the necessary documents. The accused had issued cheque No. 003512 dated 24.03.2022 for Rs.3,00,000/- from his account with Jeevan Commercial Cooperative Bank Limited, Dhebar Road, Rajkot. The cheque was presented by the applicant in his bank and the same returned with the endorsement “Funds Insufficient” on 28.03.2022. The applicant gave the statutory demand notice through his advocate on 16.04.2022 which was duly served to the accused, but the accused did not repay the amount and hence the complainant filed the complaint before the court of the Chief Judicial Magistrate, Rajkot.

2.2. The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded at Exh.05 and the evidence of the applicant was taken on record. The applicant was examined on oath and 06 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 stated that applicant had filed a false complaint as the accused had lodged a FIR against applicant before Gandhigram-1 (Uni.) Police Station and pleaded that he is innocent. The arguments of the advocates for both the parties were heard and by impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the 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.Sandeep Limbani for the applicant and learned APP Ms.Jirga Jhaveri for the respondent – State and Mr.M.S.Padaliya for the respondent – accused.

5. Learned Advocate Ms Vanshika Pritmani for learned Advocate Mr Sandeep Limbani submits that the accused was liable to pay the amount which was the legitimate dues of the applicant who had every right to recover the same. The accused has also signed Form No. 11 and submitted to the applicant and has not paid up the outstanding amount but the learned Trial Court has not considered the same. The accused has not responded to the notice and has impliedly accepted his liability, and the defence put up by the accused is an after thought and the applicant has a good case on merits and hence the leave to appeal be granted.

6. Learned APP Ms.Jirga Jhaveri for the respondent State has submitted that the learned Trial Court has considered all the documents produced by the applicant and has also considered the evidence and has passed the impugned order of acquittal considering the settled principles of law and hence the leave to appeal may not be granted.

7.1 The Apex Court in the case of Basalingappa vs. Mudibasappa reported in 2019 0 AIR (SC) 1983 has observed in Para 23 and 28 as under: