ORAL ORDER

1. This application is filed seeking leave to prefer an appeal against the judgment and order passed by the learned Judicial Magistrate First Class, Bhabhar in Criminal Case No.317 of 2022 (Old Case No.285 of 2013) below Exh.41 dated 16.01.2024 whereby, the respondent was acquitted from the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I.Act”).

2. It is the case of the complainant that the complainant and the accused both are doing the business of imitation jewelry and therefore, they were known to each other since last 15 years. In the year 2018, on demand of the accused, the complainant has lent the amount of Rs.4,00,000/- and at that time, assurance was given that as and when demand would be raised, he would return the said amount. On raising the demand the cheque bearing No.00248 of Rs.4,00,000/- dated 15.01.2022 was issued in favour of the complainant on assurance that on depositing the same cheque it would be honoured and the amount would be credited to the complainant’s account.

2.1. On depositing the cheque it was returned with an endorsement of “Funds Insufficient” and therefore after following due procedure under the N.I.Act, a private complaint came to be filed. To substantiate the charge, complainant himself was examined below Exh.5 and has produced 7 documentary evidence and on filing the closing pursis, further statement under section 313 came to be recorded of the respondent-accused, wherein the respondent accused had stated that, there is no shop run by him as stated by the complainant namely Annapurna Jewelers, his shop’s name is Kamdhenu Jewelers. Cheque in dispute has been given to one Ramabhai Dosabhai as the complainant has borrowed the money from said Ramabhai and though the amount was paid this cheque was misused by the complainant after getting the same from Ramabhai and for the other two cheques, the other complaints were filed in Rajkot and Ahmedabad. In order to prove his defence he has produced the copy of the Criminal Case No.423 of 2023 below Exh.32 filed before the Ahmedabad Metropolitan Magistrate Court, the Criminal Case No.12882 of 2022 filed before the learned Rajkot Court below Exh.33. The statement showing that the account is closed in the year 2019 with Bank of Baroda is produced below Exh.34, Registration Certificate of Kamdhenu Jewelers below Exh.35, Occupation certificate below Exh.36, Ration card below Exh.37 and Renewal Fee receipt below Exh.38 was produced.

2.2. Learned trial court after considering the evidence and the arguments advanced by learned advocate for the respective parties has acquitted the respondent-accused on the ground that complainant fails to establish the legally enforceable debt against the respondent-accused and the respondent-accused has successfully established his defence that the cheque was handed over by Ramabhai who is the brother-in-law of the complainant. The aforesaid judgment and order of acquittal is subject matter of challenge before this Court in the present application.

3. Heard learned advocate Mr.Jucky Lucky Chan for the applicant-original complainant.

3.1. Learned advocate Mr.Chan submits that, learned trial court has committed error in believing the defence of the respondent-accused that cheque was taken from Ramabhai, though the said Ramabhai was not examined by the respondent-accused in order to prove his defence. Learned advocate Mr.Chan submits that, in the reply to the demand notice, name of two witnesses are mentioned by the respondent-accused, however, none of the witnesses were examined by the respondent-

accused.

3.2. Learned advocate Mr.Chan further submits that, learned trial court has believed the evidence produced by the respondent-accused below Exh.34 i.e. the statement of Bank of Baroda showing that the account is closed since 22.11.2019. Learned advocate Mr.Chan submits that, infact this statement itself shows that respondent-accused, with an intention to che