ORAL ORDER

1. Though served, the respondent No.2 has not appeared either in person or through an advocate.

2. The present application is filed by the applicant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) seeking leave to file an appeal against the judgment and order dated 12.04.2023 passed by the learned 5^th Additional Chief Judicial Magistrate, Gandhidham - Kutch in Criminal Case No. 7542 of 2021, whereby the original accused – respondent No. 2 herein came to be acquitted from the charge levelled against him under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I.Act”). 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.

3. The brief facts culled out from the memo of the present application as well as the impugned judgment and order are as under:

3.1 The applicant is working as a Karate Coach and came in contact with the accused as the accused is having a restaurant. On 06.04.2019 the accused demanded an amount of Rs.1,50,000/- from the complainant for a period of 10 months and the complainant gave the amount without any interest and accused executed a promissory note in favour of the applicant. After 10 months when the complainant demanded the amount of Rs.1,50,000/- the accused issued cheque No. 00001 dated 15.02.2020 from his Account No. 50100020304911 with HDFC Bank, Gandhidham Branch. The cheque was deposited by the applicant in his Account No.174510100058828 on 15.02.2020 and the cheque returned unpaid with the endorsement “Drawer’s Sign Differs”. The applicant gave the statutory demand notice through his advocate on 03.03.2020 which was refused by the accused, and the accused did not repay the amount and hence the complainant filed the complaint before the court of the Chief Judicial Magistrate, Gandhidham –

Kachchh.

3.2 The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded. The affidavit of examination in chief of the applicant was taken on record but did not ensure that the documents produced were proved and exhibited and thereafter the applicant did not remain present for cross examination inspite of innumerable opportunities and hence the stage of cross examination of the applicant was closed. The learned Trial Court considered the evidence of the applicant on record and passed the impugned judgment and order and acquitted the accused from the offence under Section 138 of the N.I.Act.

4. Being aggrieved and dissatisfied with the same, the applicant has preferred the present application seeking leave to appeal mainly stating that the learned Trial Court has not properly interpreted the evidence and has misread the evidence and the impugned judgment is perverse, erroneous and contrary to law.

5. Heard learned advocate Ms.Shivangi M. Rana appearing for the applicant and learned APP Mr.Bhargav Pandya for the respondent – State. Though served the respondent No 2 has not appeared either in person or through an advocate.

6. Learned Advocate Ms.Shivangi Rana for the appellant has submitted that the applicant was ready and willing to lead his evidence but he was not made aware about the stage of the matter, and his valuable right has been defeated. That the cheque in question was issued for legally enforceable dues and the presumption is in favour of the applicant until the same is demolished by the accused, but the learned Trial Court has passed the impugned judgement and order which is erroneous and perverse and deserves to be quashed and set aside. Learned Advocate urges this court to allow the application for leave to appeal as the applicant has a good case on merits.

7. Learned APP Mr.Bhargav Pandya for the respondent State has submitted that the learned Trial Court has considered all the documents produced by the applicant and has also considered the evidence and has passed the