IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1800 of 2016 FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE S.V. PINTO ==========================================================

Approved for Reporting No ==========================================================

MAS FINANCIAL SERVICES LIMITED Versus STATE OF GUJARAT & ANR.

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Appearance:

TIRTH NAYAK(8563) for the Appellant(s) No. 1 Ms. Dhwani Tripathi, APP for the Opponent(s)/Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MS. JUSTICE S.V. PINTO Date : 08/04/2025

ORAL JUDGMENT

1. The present appeal is filed by the appellant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 29.06.2016 passed by the learned 3^rd Additional Chief Judicial Magistrate, Palanpur in Criminal Case No. 5069 of 2014, whereby the respondent No. 2 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N I Act”).

1.1 The parties are hereinafter referred to as “the complainant” and “the accused” as they stood in the original case for the sake of convenience, clarity and brevity.

2. The brief facts culled out from the memo of the present appeal as well as the impugned judgment and order and paper book filed by the complainant are as under:

2.1 The complainant filed a complaint against the accused under Section 138 of the N.I.Act as the accused had taken a loan of Rs. 28,000/- by executing agreement No.183790. As per the agreement, the accused had to pay regular installments, but the same were not paid and the accused cancelled the loan and gave cheque No.071464 dated 24.12.2012 for Rs. 40,869/- of his account with The Banasakantha Mercantile Co. Op. Bank Ltd., Dhundhiyavadi Branch, Palanpur. The cheque was deposited in the bank of the complainant for clearing, but the same returned unpaid on 26.12.2012with the endorsement “Today’s Opening Balance Insufficient”. The complainant gave the statutory demand notice through his advocate on 23.01.2013 which was duly served on 29.01.2013, but the accused did not repay the amount, and hence, the complainant filed the complaint under Section 138 of the N I Act before the Court of the Chief Judicial Magistrate, Palanpur.

2.2 The accused was duly served with the summons and appeared before the learned Trial Court and his plea was recorded at Exhibit 05 and the evidence of the complainant was taken on record. The complainant was examined on oath and 08 documentary evidences were produced in support of his case.

2.3 After the closing pursis was filed by the complainant at Exhibit 30, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused stated that the cheque was given as a security towards earlier loan and the cheque has been misused and the facts in examination in chief and in the complaint are false and a false complaint has been filed.

The accused refused to step into the witness box but has produced 02 documentary evidence in his defence and after the arguments of the learned advocates for both the parties were heard, by the impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the N I Act.

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

4. Heard learned Advocate Mr. Tirth Nayak appearing for the appellant and learned APP Ms. Dhwani Tripathi for the respondent – State. Though served, the respondent no. 2 has not appeared either in person or through an advocate. Perused the impugned judgment and order