The presumption of innocence is reinforced upon acquittal, and appellate courts must not interfere unless the trial court's findings are unreasonable or flawed.

JUDGMENT :

1. This appeal has been filed by the appellant – original complainant under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) against the judgment and the order dated 18.08.2005 in Criminal Case No.705 of 2000 passed by the learned Judicial Magistrate First Class, Balasinor (hereinafter referred to as ‘the learned Trial Court’), whereby, the learned Trial Court has acquitted the respondent No.1 – original accused from the offence punishable under Section 138 of the Negotiable Instrument Act (hereinafter referred to as ‘the Act’). 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 relevant facts leading to filing of the present appeal are as under:

2.1. That the complainant had filed a complaint under Section 138 of the Negotiable Instrument Act against the accused as the accused had given cheque No.301223 drawn on the Bank of Baroda, Mangaldas Market, Mumbai Branch and the complainant had deposited the same in Balasinor Nagarik Sahakari Bank Ltd., Balasinor Branch on 17.07.2000. but, the said cheque was returned with endorsement “Funds Expected, please present again” with the Return Memo dated 25.07.2000. The complainant gave a statutory demand notice dated 26.07.2000 and the same was received by the accused on 05.08.2000 and even though, the accused received the said notice, he did not repay the amount, and hence, the complaint was filed before the learned Judicial Magistrate, First Class, Balasinor, District Kheda.

2.2. The accused was duly served with the summons and the accused appeared before the learned Trial Court and plea of the accused was recorded at Exh.11.

2.3 The complainant side has produced 1 witness and 7 documentary evidences in support of the case.

Oral Evidence:

Documentary Evidence:

2.3. After the closing pursis was submitted by the learned advocate for the complainant at Exh.59, the further statement of the accused under Section 313 of the Code was recorded, wherein, the accused denied all the evidence produced by the complainant and stated that the notice was to received by him. After hearing the arguments of the learned advocates of both the parties, the learned Trial Court has acquitted the accused by the impugned judgment and order of acquittal dated 18.08.2005.

3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the appellant – the original complainant, who is the Power of Attorney Holder of Radhika Jitendra Parikh, has filed the present appeal mainly stating that the learned Trial Court has erred in holding that power of attorney holder cannot file the complaint under Section 138 of the Act. The learned Trial Court has also erred in holding that the complaint is signed by Jitendra C. Parikh who is the husband of Radhika Jitendra Parikh and Power of Attorney Holder and the learned Trial Court has not considered the contentions written in the Power of Attorney. The Trial Court has erred in referring that the Power of Attorney is given by a married woman to her husband and the same is general Power of Attorney not Special Power of Attorney and the same has not been revoked. The leaned Trial Court has not considered the relevant documents including the cheque at Exh.53, Memo at Exh.54, Information Letter at Exh.55 and Office Copy of the Notice at Exh.58 and notice along with envelope at Exh.57. The learned Trial Court has erred in not considering the further statement of the accused, and hence, the impugned judgment and order deserves to be quashed and set aside.

4. Heard learned advocat