The presumption under Section 139 of the NI Act is rebuttable; the burden of establishing a legally recoverable debt lies with the complainant.

JUDGEMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2344 of 2009 For Approval and Signature: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KAPADVANJ PEOPLES CO-OP BANK LTD - Appellant(s) Versus JAYANTIBHAI TALASAJI MARAWADI & 1 - Opponent(s) ========================================================= Appearance : MR AS ASTHAVADI for Appellant(s) : 1, MR TEJAS M BAROT for Opponent(s) : 1, MS. C.M. SHAH, APP, for Opponent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 01/03/2012 ORAL JUDGMENT The appellant, original complainant, has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgement and order of acquittal passed by 3rd Additional Sessions Judge, Nadiad, on 2/7 JUDGMENT 31.3.2009 in Criminal Appeal No. 24 of 2007 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short).

2. According to the complainant, the accused had obtained loan for purchase of a motor vehicle and his vehicle H.P. A/c. Number is 641. The accused gave cheque No. 21812 dated 24.7.2002 for Rs. 5,48,231/- drawn on Kapadwanj Peoples Co-operative Bank Limited towards discharge of the amount payable by him. On presentation of the cheque in the bank, it returned unpaid on account of insufficient fund.

Therefore, notice was served to the accused demanding the amount of unpaid cheque. Despite receipt of notice, the accused neither paid the amount of unpaid cheque nor gave reply to the notice. Therefore, complaint under Section 138 of the Act was filed in the Court of learned Judicial Magistrate, First Class, at Kapadwanj and it was registered as Criminal Case No. 1795 of 2002.

3. The trial Court issued summons to the respondent accused who appeared in the Court and denied having committed the offence and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to him. The accused explained incriminating circumstances in his further statement recorded under Section 313 of the Code of Criminal Procedure. The accused in his further statement explained that the Manager Hasmukhbhai Shankarbhai Patel had obtained the amount and motor vehicle was purchased by the said Manager and he had paid the amount of vehicle tax, insurance and RTO charges and some of the instalments were paid by said 3/7 JUDGMENT Hasmukhbhai. After hearing learned advocates for the parties, trial Court by judgement dated 18.4.2007 convicted the accused. Therefore, Criminal Appeal No. 24 of 2007 was preferred in the Court of learned Sessions Judge at Nadiad. The lower appellate Court after hearing learned advocates for the parties set aside conviction and acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.

4. I have heard learned advocates for the parties at length and in great detail. I have also perused the record and proceedings of the trial Court.

5. Learned advocate Mr. A