The presumption of a legally enforceable debt under Section 139 of the N.I. Act must be considered, and the trial court's failure to do so warrants granting leave to appeal.

ORAL ORDER

At the outset, learned advocate for the applicant seeks permission to delete the name of Respondent No. 5 i.e. Patel Harishbhai Laxmibhaidas as also submits that by an order dated 10/07/223 passed by this Court, matter qua Respondent No. 6 i.e. Patel Rajnikant Hiralal is abated since the respondent No. 6 has expired.

Permission as prayed for is granted. Registry is directed to delete the name of Respondent No. 5 Patel Harishbhai Laxmibhaidas and necessary amendment shall be carried out.

1. The present application has been filed by the original complainant seeking leave to appeal under Section 378(4) of the Code of Criminal Procedure, 1973 ( hereinafter referred to “Cr.P.C.”, for short) challenging the judgement and order of acquittal dated 17/03/2023 passed by the learned Judicial Magistrate First Class, Dakor (hereinafter referred to as the learned trial Court) in Criminal Case No. 85 of 2002, whereby the learned trial Court was pleased to acquit the Respondent Nos. 2, 3, 4 and 7 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as the “N.I Act”, for short).

2. Heard learned advocate Mr. Ashish Dagli for the applicant, learned Additional Public Prosecutor Ms. C.M.Shah for the respondent No. 1- State, learned advocate Ms. Raksha Dixit for the respondent No. 2 and learned advocate Mr. N.K. Majmudar for the respondent Nos. 3, 4 and 7. Perused the impugned judgement and order to examine whether the applicant has an arguable case to grant leave to appeal and admit the appeal.

3. The brief facts culled out from the impugned judgement and order and the submissions of the learned advocates as also the petition are as under:-

3.1 The respondent No. 2 is CURE AIM PHARMACEUTICAL, a partnership firm and the respondent Nos. 3, 4 and 7 are the partners of CURE AIM PHARMACEUTICAL Firm. As per the complaint, the present applicant and the Respondent Nos. 3, 4 and 7 had friendly relations and the Respondent No. 2-Firm was in need of some finance, which was given by the applicant and the applicant was added as a partner to the said Firm on 01/08/1998. The management of the said Firm was done by the Respondent Nos. 3, 4 and 7 and a dispute arose between them and a legal enforceable debt of ₹35,50,000/- till 31/05/1999 was outstanding to be paid to the applicant. An agreement on a stamp paper of ₹50/- was executed between them on 30/09/1999 but as the parties did not act as per the terms of the settlement, an Arbitration Petition - I.A.AP. No. 49 of 2000 was filed before this Court and an Arbitrator was appointed by an order dated 08/12/2000. The applicant also filed Arbitration Application No. 94 of 2000 before the Civil Court, Nadiad and an order of status quo was granted in favour of the applicant. The settlement proceedings were carried on and on 19/01/2001, a legally enforceable debt of ₹49,75,000/- was found to be outstanding to be paid to the applicant and a Memorandum of Understanding was executed in the presence of the Arbitrator and the advocates. The respondent No. 4 accepted the responsibility on behalf of the respondent No. 2 Firm and all the other respondents and 25 cheques of The Dakor Nagrik Sahkari Bank Ltd., Dakor Branch were issued in favour of the applicant. A Cheque No “279501” of ₹1,50,000/- dated 01/11/2001 was deposited by the applicant in his bank i.e. The Dakor Nagrik Sahkari Bank Ltd., Dakor Branch on 03/12/2001, and the cheque was returned with the endorsement “insufficient funds”. The applicant gave the statutory notice dated 15/12/2001 through his advocate by RPAD/ UPC, but the amount was not paid within the stipulated time period and hence the applicant filed the complaint under Section 138 of the N.I.