ORAL ORDER

1. The present application is filed by the applicant – original complainant under Section 419(4) of Bharatiya Nagarik Surakhsha Sanhita, 2023 seeking leave to file an appeal against the judgement and order dated 22.04.2024 passed by the learned 4^th Additional Chief Judicial Magistrate, Ankleshwar (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 6748/2021, whereby, the learned Trial Court was pleased to acquit the accused from the offence under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to “the NI Act” for short).

1.1 The respondent no. 2 is hereinafter referred to as the accused as he stood in the original case for the sake of convenience, clarity and brevity.

2. The brief facts culled from the memo of the application as well the judgement and order are as under:

2.1 The applicant is involved in the business of money lending and is authorised to lend money under the Gujarat Money Lenders Act, 2011 and is registered from 04.06.2018 ₹

to 31.03.2023. The accused required an amount of 4 lakhs for her father‘s business and had approached the applicant for the amount which was deposited through RTGS in the account of the accused. The accused had issued cheque no.

₹

723193 dated 13.08.2021 for 5,29,000/- of her account with State Bank of India, Kosambdi Branch and the cheque was deposited by the applicant in her account with HDFC Bank, Main Branch, Ankleshwar on 16.08.2021. The cheque was returned unpaid with the endorsement “Funds Insufficient” and the complainant sent the demand statutory notice dated 04.09.2021 on 06.09.2021 which was received by the accused on 09.09.2021. The accused gave an evasive reply to the notice on 29.09.2021 and did not repay the amount and hence, the applicant filed the complaint under section 138 of the NI Act before the Additional Chief Judicial Magistrate, Ankleshwar.

2.2 The applicant file the affidavit of examination-in-chief at Exh. 4 and examined witness - Brijeshbhai Bhupendrabhai at Exh. 14 and produced 9 documentary evidences in support of her case. After the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, the argument of the learned advocates for the parties were heard and by judgement and order dated 22.04.2024, the learned Trial Court was pleased to acquit the accused from the offence under Section 138 of NI Act.

3. Being aggrieved and dissatisfied with the judgement and order of acquittal, the applicant has preferred the present application seeking leave to appeal mainly stating that the applicant has proved that the amount was loaned to the accused at the rate of 1.5% interest and the statement dated 13.08.2019 was signed by both the parties which prove that the conditions of the loan were admitted by the accused. That the checque has been issued by the accused for the amount that was due to the applicant but the learned Trial Court has not properly appreciated the evidence produced by the applicant and even though the accused has not successfully rebutted the presumption, merely on the basis of denial of the transaction in question, the learned Trial Court has passed the impugned judgement. The applicant has a good case on merits and leave to appeal must be granted.

4. Heard learned advocate Ms. Laksha Bhavnani for the applicant and learned APP Ms. Jirga Jhaveri for the respondent State.

5. Learned advocate Ms. Laksha Bhavnani for the applicant has reiterated the contents of the application and has taken this Court through the paper book produced and submitted that the bank statement of the account of the ₹

complainant shows that the amount of 4 lakhs was transferred by RTGS on 13.08.2019 and the applicant has also produced the statement of conditions of loan which is duly signed by the accused. The applicant is a license holder and is entitled to give loan on interest and the learned Trial Court has not appreciated the documents in proper perspective. Learned advocate has urged