The appellate court has the authority to review evidence in acquittal cases but must uphold the presumption of innocence and respect the trial court's findings unless compelling reasons exist.

ORDER :

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 23.08.2022 passed by the learned 2nd Judicial Magistrate First Class, Mehsana in Criminal Case No. 3971 of 2020, whereby the original accused – respondent herein came to be acquitted from the charge leveled against him under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act”).

2. The brief facts culled out from the memo of the present application as well as the impugned judgment are as under :

2.1. The applicant - original complainant had filed a complaint under Section 138 of the N.I. Act against the respondent No.1 - original accused mainly stating that the respondent No. 1 – original accused had borrowed an amount of Rs.5,00,000/- from the applicant-original complainant for his business and the amount was paid by the applicant-original complainant from his savings and the amount was to be returned within a period of six months. That, as the respondent No. 1 – original accused did not pay up the amount within the stipulated time and on demand, the respondent No. 1 – original accused gave two cheques bearing Cheque Nos. “000019” and “000020” for an amount of Rs.2,50,000/- each of Kotak Mahindra Bank, Visnagar Branch, dated 15.04.2020 to the applicant- original complainant. The the applicant- original complainant deposited a cheque No. 000019 in his account but the same returned unpaid with an endorsement “ payment stopped by drawer ” and thereafter the applicant – original complainant gave the notice through his advocate, which was received by the respondent No.1 – original accused but no reply was filed to the notice, and hence, the applicant – original complainant filed the complaint before the Court of learned 2nd Judicial Magistrate First Class, Mehsana.

2.2. The respondent No. 1 – original accused was served with summons and he appeared before the learned trial Court and his plea was recorded at Exh. 6 and the evidence of the applicant-original complainant was taken on record. The applicant- original complainant filed his Examination-In-Chief at Exh.11 and submitted seven documentary evidences to prove his case and after the evidence of the applicant- original complainant was closed, the further statement under Section 313 of the Cr.P.C. of the respondent No. 1- original accused was recorded, wherein, the respondent No.1 – original accused stated that he had paid the entire amount to the applicant - original complainant with interest and he had given two cheques as a security, which has been misused by the applicant – original complainant. The respondent No. 1 – original accused examined two witnesses and produced nine documentary evidences and after closing pursis was filed at Exh. 36, the arguments were heard and the learned trial Court, Mehsana was pleased to acquit the respondent No.1 – original accused from the offence under Section 138 of the N.I.Act.

3. Being aggrieved and dissatisfied with the same, the applicant – original complainant has preferred the present application seeking leave to appeal mainly stating that the learned Trial Court has not properly interpreted Sections 118, 138 and 139 of the N.I.Act..

4. Heard learned advocate Mr. Suraj Matieda appearing for the applicant - original complainant, learned advocate Mr. Keyur Vyas for the respondent No.1 and learned APP Ms. Jirga Jhaveri for the respondent No. 2 – State.

5. Since this is an application seeking leave to appeal against an order of acquittal, at this juncture, it would be fit to refer to the observations of the Apex Court in the case of Ramesh versus State of Karnataka reported in (2024) 9 SCC 169 in para 15 as under :-

“15. We may point out that, once the Trial Court found no evidence to convict the accused, the burden was upon the High Court, while reversing the said judgment, to