The presumption under Section 139 of the NI Act favors the complainant, and the accused must rebut this presumption with credible evidence.

ORDER :

(S. V. PINTO, J.)

1. The present application is filed by the applicant – original complainant under Section 419(4) Bharatiya Nagarik Suraksha Sanhita 2023, seeking leave to appeal against the judgement and order dated 12.08.2024 passed by the learned 10^th Additional Session Judge, Surat in Criminal Appeal No. 479 of 2022, whereby, the Sessions Court was pleased to reverse the conviction of the respondent no. 2 – original accused for the offence punishable under Section 138 of the Negotiable Instrument Act , 1881 (hereinafter referred to “the Act” for short) recorded by the learned 16^th Additional Chief Judicial Magistrate, Surat (hereinafter referred to as the “learned Trial Court”) by a judgement and order dated 24.08.2022 in Criminal Case No. 17177 of 2018.

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 from the memo of the application as well the judgement and order are as under:

2.1 The complainant is doing the business of glass, windows, doors, etc. in the name of Om Sai Glass. The accused is the Managing Trustee of Dakshina Murthy Vidyalaya and came in contact with each other through the brother of the accused – Gopal Laljiwala. The accused asked some money for development of the school and an amount of Rs.6 lakhs was lent in January 2017, Rs.6 lakhs in February 2017 and the remaining Rs.5 lakhs in March 2017. In all, an amount of Rs.17 lakhs was given to the accused towards which the accused issued cheque no. 000055 dated 29.06.2017 for Rs.9 lakhs of his account with HDFC Bank Limited, Puna Khambhariya Branch, Surat. The cheque was deposited by the complainant in his account with Axis Bank Branch, Surat but the cheque returned unpaid on 03.10.2017 with the endorsement “Instrument Outdated / State”. The accused once again issued cheque no. 000059 dated 10.11.2017 for Rs.16,42,000/- of his account with HDFC Bank Limited, Puna Khambhariya Branch, Surat and the cheque was deposited by the applicant in his account with Axis Bank Surat Branch but the cheque was dishonoured on 09.02.2018 with the endorsement “Insufficient Funds”. The applicant gave the statutory demand notice on 10.03.2018 which was duly served to the accused on 12.03.2018 but the accused did not repay the amount and hence, the applicant filed the complaint under Section 138 of NI Act before the Chief Judicial Magistrate, Surat.

2.2 The accused was duly served with the summons and the accused appeared before the learned Trial Court and his plea was recorded and after the evidence of the applicant was taken on record, the further statement of the accused under Section 313 of the Code of Criminal Procedure , 1973 was recorded. After the arguments of both learned advocates for the parties, the learned Trial Court was pleased to convict the accused and sentenced him to undergo simple imprisonment for one year and fine of Rs.32,84,000/- and in default, further simple imprisonment for six months for the offence punishable under Section 138 of the Ni Act. The learned Trial Court was pleased to further order that the amount of fine be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure , 1973.

3. Being aggrieved and dissatisfied with the judgement and order of conviction, the accused filed Criminal Appeal No. 479 of 2022 before the Sessions Court, Surat and after hearing the learned advocates for both the parties, the learned 10^th Additional Session Judge, Surat was pleased to allow the appeal and set aside the judgement and order of conviction passed by the learned 16^th Additional Chief Judicial Magistrate, Surat in Criminal Case No. 17177 of 2018 and acquit accused from the o