ORAL JUDGMENT

1. This appeal is filed under section 378 of Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C”) challenging the judgment and order of acquittal passed under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I.Act”) by the learned Special Judge, Negotiable Instrument Act, Surat in Criminal Case no. 22401 of

2019 dated 21.08.2023.

2. It is the case of the complainant that complainant is known to the respondent-accused through one Rameshbhai Soni and lend the amount of Rs.4,50,000/- at 21% interest at the shop of Rameshbhai Soni on 14.06.2016. The respondent-accused had executed the promissory note accepting the aforesaid amount and thereafter, issued the cheque bearing no.917676 dated 24.04.2019 for the amount of Rs.4,50,000/- on assurance that this amount will be paid as principle amount and with regard to the interest, the accounts would be settled later on.

2.1. On depositing the cheque, it was returned with an endorsement of “funds insufficient”. Therefore, after following the due procedure under the N.I.Act, private complaint came to be filed before the competent court.

3. On being summoned, the respondent-accused appeared and his plea was recorded wherein, he pleaded not guilty and claimed to be tried. To prove his case, the complainant has produced 18 documentary evidences and examined himself below Exh.4. On filing the closing pursis, the statement under section 313 of Cr.P.C came to be recorded wherein, the accused had pleaded false implications. To prove the defence, the accused examined two witnesses below Exh.49(a) and has produced 10 documentary evidences on record.

3.1. After considering the evidences and the documents lead by the learned advocate for the respective parties as well as the arguments, the learned trial court has acquitted the respondent-accused from the charges which is impugned before this Court.

4. Heard the learned advocate Mr.Jigar Patel for the applicant and as this matter has been decided at admission stage, no notice was issued to the respondent-

accused.

5. Perusing the record and proceeding thoroughly it transpires that complainant filed this case with allegations that the amount of Rs.4,50,000/- which was lent on 14.06.2016 was repaid through cheque on 24.04.2019. On depositing the said cheque, it was returned with an endorsement of “funds insufficient”. It is settled principle of law that the presumption which is provided under section 118 and 139 of the N.I.Act regarding that every negotiable instrument made or drawn for consideration the court has to presume and proceed on the basis of the presumption unless it is dislodged by the accused on the strength of leading cogent and convincing evidence in support of his case.

5.1. In order to dislodge the presumption, the respondent-

accused cross-examined the complainant wherein, the complainant has admitted that “complainant is doing the business of money lending since last 15 years. The cheque which was issued was not given by the respondent-accused on the day of transaction i.e 14.06.2016 and at the shop of Rameshbhai Soni at Bharuch the promissory note was given by the respondent-accused which is produced below Exh.40 wherein, except the signature all handwriting are not of respondent-accused. The bank statement of Sutex Co- operative Bank produced below Exh.38 reveals no transactions during 13.05.2016 to 13.06.2016 of Rs.8,50,000/- or Rs.4,50,000/-. I was given the facility of overdraft of Rs.6,00,000/-. No documents regarding ledger account, statements was produced before the learned trial court. Licence for money lending is only for Surat district. Prior to one month of the date of transaction i.e on 13.05.2016, the father- in-law of the accused had executed the sale deed with possession for the property no.218 was given towards the earnest money and the total amount of consideration was fixed for Rs.6,00,000/-. On 11.05.2016 Banakhat was also executed without possession bef