The court found that a failure to properly appreciate evidence may warrant an appeal under Section 138 of the NI Act.

ORAL ORDER

1. The present application is filed by the applicant – original complainant seeking leave to file an appeal against the judgement and order dated 04.10.2024 passed by the learned Judicial Magistrate First Class, Mandal (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 828/2017, 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).

2. Heard learned advocate Mr. Maharshi Shukla for learned advocate Mr. Hiren Vyas for the applicant and learned APP Ms. C.M. Shah for the respondent State.

3. Learned advocate Mr. Maharshi Shukla for learned advocate Mr. Hiren Vyas for the applicant submits that the applicant and the respondent no. 1 were known each other and as the respondent no. 1 was in need of some financial assistance for his business, and as the applicant had sold his agricultural land and had the finance amount, had advanced an amount of Rs. 35,00,000/- to the respondent no. 1 in the year 2012. When the amount was demanded, the respondent no. 1 gave cheque no. 394530 dated 14.09.2017 for Rs. 35,00,000/- from his account with IDBI Bank, Rannapark, Ghatlodiya Branch, Ahmedabad. The cheque was deposited by the applicant in his account with Ahmedabad District Cooperative Bank, Ltd., Sitapur, Mandal Branch but the cheque returned unpaid with the endorsement “Funds Insufficient”. The demand statutory notice was given which was duly served to the respondent no. 1 but the respondent no. 1 did not pay the amount within the stipulated period and hence, the applicant filed the complaint under Section 138 of the NI Act before the Court of Judicial Magistrate First Class, Mandal which came to be registered as Criminal Case No. 828/2017. The respondent no. 1 was duly served with the summons and he appeared before the learned Trial Court and after his plea was recorded at Exh. 11 and the applicant produced the oral and documentary evidence on record. After the closing pursis was filed by the applicant and the further statement of the respondent no. 1 was recorded under Section 313 of Code of Criminal Procedure, 1973, the respondent no. 1 stepped into the witness box and deposed on oath at Exh. 41 and produced three documentary evidence in support of his case and after the arguments of learned advocates for both the parties were heard, by the impugned judgement and order, the learned Trial Court was pleased to acquit the respondent no. 1 from the offence under Section 138 of the NI Act. Learned advocate submits that the applicant had proved that he had the financial capacity to advance the amount of Rs. 35,00,000/- and in the defence, the respondent no. 1, though he stepped into the witness box, came up with the defence that the cheque was stolen but immediately thereafter, has admitted that he had never met the applicant. Moreover, there is no evidence on record that after the cheque was stolen and the notice was duly served to the respondent no. 1, he had taken any steps regarding the same. Learned advocate submits that the applicant has a good case on merits and the legally enforceable due amount was proved from the oral and documentary evidence but the learned Trial Court has not appreciated the evidence in proper perspective and hence, the application seeking leave to appeal must be granted.

4. Learned APP Ms. C.M. Shah 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 impugned order of acquittal considering the settled principles of law and hence, the leave to appeal may not be grante