The appellate court found that the Trial Court misapprehended material evidence, necessitating reevaluation of the acquittal under Section 138 of the Negotiable Instruments 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 passed by the learned Additional Chief Judicial Magistrate, Amreli (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 1784 of 2021 dated 03.03.2025, 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 N.I.Act” for short).

2. Heard learned advocate Mr. Nishith P. Acharya for the applicant and learned APP Ms.C.M.Shah for the respondent No. 2 - State.

3. Learned advocate Mr. Nishith P. Acharya for the applicant submits that the applicant is Awadh Nagrik Sharafi Sahkari Mandali Limited and advances loans to the members. The respondent no.1 had taken a loan of Rs.10,00,000/- from the applicant society and had executed all the documents for the loan and on 09.07.2021, an amount of Rs.14,59,314/- was outstanding, towards which, cheque no.465104 dated 09.07.2021 for Rs.14,59,314 from her account with Union Bank of India, Amreli Branch was issued. The cheque was deposited by the applicant in the account of the society with Amreli Jilla Madhyastha Sahkari Bank Limited and 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 send any reply to the notice and did not repay the amount within stipulated period, and hence, the applicant filed a criminal complaint under Section 138 of the Negotiable Instruments Act before the Court of Chief Judicial Magistrate, Amreli, which came to be registered as Criminal Case No.1784 of 2021. After the respondent no.1 appeared before the Learned Trial Court, her plea was recorded and the applicant produced oral and documentary evidences in support of her case. Learned Advocate submits that the applicant had produced the Loan Application Form at Exh.75, the Statement of account at Exh.65 and the Demand Promisory Note executed by the respondent no.1 at Exh.76 and had also produced all the other documents to prove that the loan was taken and that the amount of Rs.14,59,314 was outstanding towards which the cheque in question was issued. After the evidence of the applicant was closed, in the further statement, the respondent no.1 produced two documentary evidences, but the applicant had, by oral and documentary evidences, proved that the amount of cheque was the outstanding amount due to the applicant, towards which, the cheque in question was issued. The Learned Advocate submits that the applicant had also produced the extract of the resolution, by which, the applicant was authorized to file the complaint at Exh.31, but the learned Trial Court did not appreciate the same properly and considered that the extract of resolution by which the applicant was authorized to file the complaint had only the signature of the Manager. Learned advocate submits that, in fact, the resolution was unanimously passed and all the directors were present on 25.10.2021 when the meeting for appointing the applicant and others to initiate proceedings against the members, who had not paid up the outstanding amount was taken and that resolution had the signature of all the directors, but as the only extract of the resolution was produced on record, it was produced with the signature of the Manager. Learned advocate submits that the applicant has a good case on merits, but the learned Trial Court did not appreciate the oral and documentary evidence in proper perspective and the application seeking leave to appeal is required to be allowed.

4. Learned APP Ms.C.M.Shah for the respondent State has submitted that the learned Trial Court has