ORAL JUDGMENT

1.With the consent of the parties, appeal is being decided finally on admission stage.

2.This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ hereinafter) challenging the impugned judgment and order dated 20.06.2023 passed by the learned Additional Civil Judge and Judicial Magistrate first Class, Vijapur in Criminal Case No.1599 of 2022 below Exhibit 27, whereby the the respondent- accused is acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1886.

3.The case of the complainant is that the complainant and the accused were knowing to each other as the accused is doing the trading business of potato and having the cold storage at Bardoli. The complainant used to visit the cold storage and the complainant and the accused become a friend. In the year March 2022, the accused had purchased the potatoes through the complainant of the amount of Rs.11,12,146/-. As the said goods were purchased through the complainant, payment was made to the complainant of Rs.80,146/- in cash and for the remaining amount of Rs.10,32,000/- three cheques were issued in favour of the complainant. The details of the cheques are mentioned hereinbelow:

3.1.An assurance was given that on depositing the aforesaid cheque in the Bank, it would be honored and the amount would be credited in the account of the complainant. On depositing the aforesaid cheques with the complainant Bank, the same was dishonored with an endorsement of ‘Account Closed’ on 30.06.2022. Again, the said cheques were deposited with the same endorsement and the same was returned on 05.08.2022. The demand notice came to be issued by the complainant on 01.09.2022, which was served on 05.09.2022. As neither demand notice was complied nor the replied, a private complaint came to be filed being Criminal Case No.2599 of 2022.

3.2.To prove the case, the complainant has examined himself below Exhibit 5 and produced the documentary evidence in the nature of three original cheques below Exhibits 8, 9 and 10, check returned advice below Exhibit 11, cheque returned memos below Exhibit 12, 13, 14, copy of the notice below Exhibit 15, copy of the registered Post A.D. window slip below Exhibit 16, copy of the acknowledgment below Exhibit 17, reply to the notice below Exhibit 18, carbon copy of the bill below Exhibits 19 to 22, GST certificate below Exhibit 23.

3.3.On filing the closing pursis, the accused file pursis below Exhibit 26 disclosing that he did not want to give the further statement. Thereafter judgment and order on acquittals after considering the material placed on record was passed by the learned trial Court below Exhibit

27, which is impugned before this Court.

4.Heard the learned advocate Mr.Jigar Dave for the applicant, learned advocate Mr.Kaivan Patel for the respondent No.2 and learned APP Ms.Divyangna Jhala for respondent-State.

5.Learned advocate Mr.Jigar Dave for the appellant submits that unique method has been adopted by the learned trial Court for acquitting the respondent-accused. That on appearing the accused, the complainant was cross examined which was over in five lines wherein the complainant was asked to identify the respondent-accused, for which the complainant failed to identify, only on that ground the learned trial Court had acquitted the respondent-accused.

5.1.Learned advocate Mr.Dave submits that though the presumption which is in favour of the complainant under Sections 118 and 139 of the N.I.Act was not rebutted by the learned trial Court, learned trial Court had acquitted the respondent-accused only on the ground that the present complainant could not identify the respondent-accused in the court. Learned advocate Mr.Dave further submits that though al