Consent of the complainant is necessary for quashing conviction under Section 138 of the Negotiable Instruments Act, reaffirming its quasi-criminal nature and the court's duty to uphold procedural legality.

ORDER :

S.V. Pinto, J.

1. The applicant has filed the present application seeking leave to appeal under Section 419(4) of the Bhartiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) against the judgment and order passed by the learned Additional Sessions Judge, Vadodara in Criminal Appeal No. 578 of 2024, whereby, the learned Sessions Judge, Junagadh has set aside the allowed the appeal of the respondent No. 2 and remanded the matter back to the leaned Trial Court.

2. The brief facts of the present appeal are as under;-

2.1 The applicant and the respondent No. 2 were known to each other and the respondent No. 2 was in need of some finance to start business of sand and requested for loan of Rs.15,00,000/- from the applicant. The applicant gave an amount of Rs.9,00,000/- by transfer in the account of the accused and an amount of Rs.6,00,000/- in cash in parts and in all an amount of Rs.15,00,000/-was given. The respondent No. 2 returned an amount of Rs.3,00,000/- and towards the outstanding amount of Rs.12,00,000/- issued cheque No. “039591’ dated 15-11-2022 from his account with IDBI Bank Bodeli Branch. The cheque was deposited by the applicant in his account with the Kalupur Commercial Cooperative Bank Limited Manjalpur branch but the cheque returned unpaid with the endorsement “Funds Insufficient”. The demand statutory notice was given, which was refused by the respondent No. 2 and the amount was not paid within the stipulated period and hence the applicant filed a criminal complaint under Section 138 of the Negotiable Instruments Act,1881 before the Court of the Chief Judicial Magistrate, Vadodara which came to be registered as Criminal Case No. 1453 of 2023. The learned Trial Court took cognizance of the offence and issued summons to the respondent No. 2 and after the respondent No. 2 appeared, his plea was recorded at Exh. 7. The applicant filed his affidavit of examination- in-chief at Exh. 4 and produced seven documentary evidences in support of his case. The respondent No. 2 did not appear to cross-examine the applicant and the evidence produced by the applicant remained unchallenged and warrants were issued to the respondent No. 2, which could not be served. The further statement of the respondent No. 2 under Section 313 of the Code of Criminal Procedure, 1973 was not recorded and the learned Trial Court closed the stage of cross-examination as well as the stage of recording of 313 of the Cr.P.C. of the respondent No. 2 and in the absence of the respondent No. 2, was pleased to pass a judgment in order of conviction and sentenced the respondent No. 2 to simple imprisonment of 6 months and ordered the respondent No. 2 to pay an amount of Rs.11,50,000/- as compensation to the applicant within a period of 1 month and fine of Rs.10,000/- and in default, simple imprisonment for one and a half months. The learned Trial Court was pleased to issue a non-bailable warrant against the respondent No. 2 for execution of the sentence.

2.2 Being aggrieved and dissatisfied with the said judgment and order of conviction, the respondent No. 2 filed Criminal Appeal No. 578 of 2022 before the Sessions Court, Vadodara and after hearing the learned advocates for the parties, the learned Trial Court was pleased to quash and set aside the judgment and order of conviction passed by the learned Trial Court and discharge the respondent No. 2 from the charges levelled against him under Section 138 of the Negotiable Instruments Act.

2.3. Being aggrieved and dissatisfied with the said judgment and order of acquittal, the applicant has filed a present application seeking leave to appeal mainly st