ORAL ORDER

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 20845 of 2023

1. This application is filed seeking leave to prefer an appeal challenging the judgment and order of acquittal passed by the learned 2nd Additional Judicial Magistrate First Class and Civil Judge, Dahod in Criminal Case No.3260 of 2018 dated 05.04.2023 by which the respondent-accused was acquitted from the offence punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’

referred hereinafter).

2. It is the case of the complainant that the complainant who is the power of attorney holder of the finance company has filed the complaint alleging that the hypothecation facility was availed by the respondent- accused for purchase of vehicle bearing Registration No.GJ-20-U-9776 and for repayment of the aforesaid amount, cheque bearing No.252371 was issued in favour of the complainant for the amount of Rs.3.50 Lakh. On depositing the said cheque it was returned with an endorsement of ‘funds insufÏcient’ therefore on following the procedure under the N.I.Act, private complaint came to be filed.

3. In support of the complaint, the complainant himself was examined below Exhibit 20 and has produced nine documentary evidences including the loan-cum- hypothecation agreement. On filing the closing pursis, the respondent-accused has produced 17 receipts of payment of installment below Exhibit 19 contending that out of loan of Rs.1.70 Lakh, the amount of Rs.1.70 Lakh is paid and the security cheque, which was lying with the respondent-accused, was misused by the complainant. Learned trial Court after considering the evidence and the submissions made by the learned advocates for the respective parties has acquitted the respondent-accused from the charges which is the subject matter of challenge before this Court.

4. Heard the learned advocate Mr.Manish Patel for the applicant-original complainant.

5. Learned advocate Mr.Manish Patel submits that learned trial Court has failed in considering the provisions of Sections 118 and 139 of the N.I.Act wherein the presumption is provided in favour of the complainant and in absence of rebuttal of presumption, the learned trial Court has held that the complainant fails to establish the legally enforceable debt. Learned advocate Mr.Patel submits that as per the statement produced below Exhibit 28, amount of Rs.47,000/- is paid out of the loan amount of Rs.1.70 Lakh however, the learned trial Court has relied on Exhibit 19-the receipts, which are produced by the respondent-accused without proving the same by following the provision of Indian Evidence Act has acquitted the respondent-accused from the charges. Learned advocate Mr.Patel further submits that though at the time of filing of the complaint, the vehicle in question was not seized, which was seized subsequently during the pendency of the trial, however, learned trial Court has come to the conclusion that as the vehicle was seized, agreement would put an end to and therefore, the security cheque, which was issued at the time of execution of the agreement would become an instrument without consideration and the respondent-accused would not be liable to discharge his liability to pay the cheque amount. Learned advocate Mr.Patel submits that without any cogent reasons the judgment and order of acquittal is passed and therefore, application for seeking leave to prefer an appeal is required to be allowed and the appeal is required to be admitted.

6. Considering the submissions made by the learned advocate Mr.Patel and on perusing the record and proceedings thoroughly it transpires that, the complaint is filed by the complainant without mentioning the loan amount, date of loan or any particulars with regard to the agreement. It was only contended in the complaint that for repayment of the loan, the cheque bearing No.252371 was issued for the amount of Rs.3.50 Lakh, which was dishonored and for the same impugned complaint is filed. The respondent-accused in order