The appellate court's misapprehension of evidence necessitates intervention when prior courts arrive at conflicting conclusions based on the same evidence.

ORAL ORDER

1. The present application is filed by the applicant - original complainant under Section 419 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as “the BNSS ”) seeking leave to appeal against the judgment and order dated 12.12.2024 passed by the learned 3^rd Additional Sessions Judge, Gandhinagar (hereinafter referred to as the “ the learned appellate Court) acquitting the respondent No. 1 in Criminal Appeal No. 163 of 2024 filed by the respondent No. 1 challenging the judgment and order of conviction passed by the learned Judicial Magistrate First Class, Mansa in ( hereinafter referred to as “the learned Trial Court) in Criminal Case No. 362 of 2021 for the offence under Section 138 of the Negotiable Instrument Act, 1881 . (hereinafter referred to as the NI Act).

2. Heard learned advocate Mr. Keyur Vyas for the applicant and learned APP Ms. Chetna Shah for the respondent No.1 – State.

3. Learned advocate Mr. Keyur Vyas for the applicant submits that the applicant and the respondent No. 1 were known to each other and were friends. The respondent No. 1 was in need of some finance and requested the applicant to advance some amount and the applicant had given hand loan of Rs. 5,50,000/- to the respondent No. 1, which was to be returned within a period of six months. The respondent No. 1 had issued cheque No. “102691” dated 10.03.2021 for an amount of Rs.5,50,000/- from his account with Canara Bank, Jaliyano Math Branch, Gandhinagar. The cheque was deposited by the applicant in his account with Bank of India, Mansa Branch but the cheque returned unpaid with the endorsement “ kindly contact the drawer / drawee bank and please present again” . The applicant sent demand statutory notice which was duly served to the respondent No. 1. The respondent No.1 filed an evasive reply but did not repay the amount within stipulated period and hence, the applicant filed a criminal complaint under Section 138 of the NI Act before the Court of the learned Judicial Magistrate First Class, Mansa, which came to be registered as Criminal Case No. 362 of 2021. After the respondent No. 1 was duly served with the summons, he appeared before the learned trial Court and the applicant has submitted his affidavit of examination-in-chief at Exh.5 and produced twelve documentary evidence in support of his case. After the closing pursis of the applicant was filed, the further statement under Section 313 of the Cr.P.C was recorded, wherein, the respondent No. 1 denied all the allegations and stated that the cheque in question has been misused by the applicant. The respondent No.1 examined one witness at Exh.33 and produced two documentary evidence in support of his case. After the arguments of the learned advocates for both parties were heard, the learned trial Court, by a judgement and order dated 24.04.2024 was pleased to convict the respondent No. 1 for the offence of under Section 138 of N.I.Act and sentence the respondent No. 1 to simple imprisonment for a period of six months and ordered the respondent No. 1 to pay an amount of Rs.5,50,000/- within a period of two months from the date of the order as compensation to the applicant and in default to undergo simple imprisonment for three months.

3.1 Being aggrieved and dissatisfied with the judgment and order of conviction, the respondent No. 1 filed Criminal Appeal No. 163 of 2024 before the Court of learned Sessions Judge, Gandhinagar and after the arguments of the learned advocates for both the parties were heard, the learned 3^rd Additional Sessions Judge, Gandhinagar, by the impugned judgement and order dated 12.12.2024, was pleased to allow the appeal and acquit the respondent No. 1 for the offence under Section 138 of the NI Act.

4. Learned