The presumption under Section 139 of the Negotiable Instruments Act is rebuttable, requiring the applicant to prove the existence of a legally enforceable debt, which was not demonstrated in this case.

ORDER :

1. The present application is filed by the applicant – original complainant seeking leave to file an appeal against the judgment and order dated 12.03.2025 passed by the learned 2^nd Additional Judicial Magistrate First Class, Dholka (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 1179 of 2009, 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 taken a hand loan of Rs.15,00,000/- from the applicant and the accused had issued cheque No.011511 and cheque No.11512 for the amount of Rs.2,55,000/- each dated 01.12.2008, cheque No.008978 for the amount of Rs.2,40,000/- dated 15.04.2009 and cheque No.142995 for the amount of Rs.7,50,000/- dated 04.05.2009 from his account with The District Co-operative Bank Ltd, Kalikund, Dholka Branch. The applicant deposited cheque No.011511 and cheque No.11512 for the amount of Rs.2,55,000/- each dated 01.12.2008 and cheque No.008978 for the amount of Rs.2,40,000/- dated 15.04.2009 in his account with The Ahmedabad District Co- operative Bank Ltd, Kalikund, Dholka Branch and all the three cheques were dishonored and the reason mentioned in the return memo was “Funds Insufficient”. The applicant sent the statutory demand notice to the accused on 23.05.2009 which was duly served but no payment was made. The applicant filed the criminal complaint before the Court of the Judicial Magistrate First Class, Dholka under Section 138 of the N.I.Act, 1881 which was registered as Criminal Case No. 1179 of 2009.

2.2 The accused was served with the summons and the accused appeared before the learned Trial Court and his plea was recorded at Exh.13 and the entire evidence of the applicant was taken on record. The applicant was examined on oath and 12 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 he has not issued any cheque in favor of the applicant and a false complaint has been filed. The accused refused to step into the witness box but examined one witness on oath at Exh.36 and produced 02 documentary evidences in his defence and after the arguments of the learned advocates for both the parties were heard, by the impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the N I 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. Hiren S. Somaiya appearing for the applicant, learned APP Ms. C.M. Shah for the respondent – State.

5. Learned Advocate Mr. Hiren S. Somaiya for the applicant submits that th