ORDER

1. Heard on IA No.13688/2022, which is an application for leave to appeal under section 378(4) of CrPC against the judgment of acquittal dated 21.7.2022 passed by Shri Chandan Singh Chauhan, Chief Judicial Magistrate, Vidisha in Criminal Case No.577/2016 whereby respondent Chanda Bansal was acquitted of the charge of offence punishable under Section 138 of Negotiable Instruments Act.

2. The appellant, in the application for leave to appeal submited that respondent Chanda Bansal has taken a loan of Rs.20,00,000/- for her personal need from appellant-Ramesh Chandra. To repay the loan, respondent had given a cheque dated 21.3.2016 in sum of Rs.20,00,000/- payable from her account in HDFC bank, Branch, Khari Phatak, Vidisha. The cheque was presented for encashment on 1.6.2016, but it was dishonoured on 2.6.2016. Despite service of demand notice t o respondent, she had not paid the amount of cheque, therefore, a complaint under section 138 of NI Act was filed. Learned Judicial Magistrate, after trial, passed the impugned judgment on 21.7.2022 and acquitted respondent-Chanda Bansal.

3. I t is further stated that learned Trial Magistrate without properly appreciating the evidence on record acquitted the respondent. The Trial Court failed to appreciate that in her statement under section 313 of CrPC, respondent has admitted commercial transactions between her son Amit Bansal and the appellant. The alleged loan was extended to respondent as both the families had regular financial transaction between them. Learned Trial Court has failed to appreciate that onus of showing absence of legally recoverable debt or liability was on the respondent. The only defence of respondent was that the cheque in question was stolen by the present appellant but the probability of said defence was not established. The defence witness, Raman Agrawal admitted that no report was made regarding theft of the cheque. The acquittal of respondent under section 138 of NI Act is bad in law, therefore, leave to appeal may be granted to appellant against the impugned judgment of acquittal dated 21.7.2022.

4. Learned counsel for the appellant submits that in Para 19 of the impugned judgment despite mentioning that there was commercial transaction between husband and son of the accused with the complainant, learned rial Court refused to accept the fact that accused Chanda Bansal has taken loan of Rs.20,00,000/- from the complainant. This finding is based on assumption, therefore, bad in law. Learned counsel further submits that the presumption under section 139 of NI Act was not duly considered by the learned trial Court.

5. Per contra, learned counsel for the respondent submits that there was no commercial transaction between the respondent/accused Chanda Bansal with the complainant. Further, the complainant in his evidence could not clarify when and through what mode, he had given loan of Rs.20,00,000/- to accused Chanda Bansal. Thus, the factum of loan to the accused Chanda Bansal being doubtful, learned Trial Court committed no error in acquitting her.

6. Heard both the parties. Perused the record.

7. From study of judgments of Supreme Court on the question of scope of powers of the Court in an appeal against acquittal in the cases of Chandrappa v. State of Karnataka, (2007) 4 SCC 415, Murugesan v. State through Inspector of Police, AIR 2013 SUPREME COURT 274, Mookkiah v. State, Rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SUPREME COURT 321, Habib v. State of Uttar Pradesh, AIR 2013 SUPREME COURT 1764, State of Madhya Pradesh v. Dal Singh, AIR 2013 SUPREME COURT 2059 and State of U. P. v. Gobardhan, AIR 2013 SUPREME COURT 3033, following broad principles may be culled out:-

(1) The appellate Court has full power to review, re-appreciate and reconsider the evidence etc.

(2) The code of Criminal Procedure 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate Court on the evidence before it may reach its own conclusi