An appellate court reviewing a trial court's acquittal must respect the presumption of innocence unless the judgment demonstrates clear and manifest errors in the consideration of evidence.

JUDGMENT :

S.V. PINTO, J.

1. The present appeal is filed by the appellant – original complainant under Section 378 (4) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal passed by the learned 2^nd Additional Chief Judicial Magistrate, Rajkot (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 9924 of 2016 on 18.04.2016, 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 NI Act”).

1.1 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 brief facts culled out from the memo of the present appeal as well as the impugned judgment and order and paper book filed by the complainant are as under:

2.1. The complainant company is in the business of finance and the accused had taken a loan from the complainant company by executing a loan agreement. As per the agreement, the accused had to pay regular installments, but the same were not paid and when the accounts were settled, the accused gave cheque No.798825 dated 07.09.2006 for Rs.45,759/- from his account with The Citizens Cooperative Bank. The cheque was deposited in the bank of the complainant for clearing, but the same returned unpaid on 12.09.2006 with the endorsement “Account Closed”. The complainant gave the statutory demand notice through his advocate on 28.09.2006 which was duly served on 29.09.2006, but the accused did not repay the amount within the stipulated period, and hence, the complainant filed a complaint under Section 138 of the Act before the Court of the Chief Judicial Magistrate, Rajkot. At the end of the trial, the learned trial court, by a judgment and order dated 01.08.2012 was pleased to convict the accused and sentence him to simple imprisonment for one year and to pay an amount of Rs.67,000/- as compensation to the complainant after the appeal period was over.

2.2 The accused preferred Criminal Appeal No.85 of 2012 before the Sessions Court, Rajkot, which was allowed and by a judgment and order dated 30.04.2013, the learned Sessions Court set aside the judgement and order of conviction and was pleased to remand the matter back to the learned trial court for retrial.

2.3. Pursuant to the order of remand by the learned Sessions Court, Rajkot, the accused was duly served with the summons and appeared before the learned Trial Court and his plea was recorded at Exhibit 61 and the evidence of the complainant was taken on record. The complainant was examined on oath and 08 documentary evidences were produced in support of his case.

2.3. After the closing pursis was filed by the complainant, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused stated that the facts in examination in chief and in the complaint are false and a false complaint has been filed. The accused refused to step into the witness box and did not lead any 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 Act.

3. Being aggrieved and dissatisfied with the same, the complainant has preferred the present appeal mainly stating that the learned Trial Court has not properly interpreted the evidence and has misread the evidence and the impugned judgment and order is perverse, erroneous and contrary to law.

4. Heard learned Advocate Mr.Tirth Nayak appearing for the appellant and learned APP Mr.Pranav Dhagat for the respondent – State. T