JUDGMENT :

HASMUKH D. SUTHAR, J.

1) By way of present revision application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C”), the applicant has prayed for quashing and setting aside of the judgment and order dated 22.11.2010 passed by learned City Sessions Judge, Ahmedabad, in Criminal Appeal No. 227/2009 and confirm the order of conviction and sentence passed by learned Metropolitan Magistrate, NI Act, Court No.2, Ahmedabad, in Criminal Case No.50/2008, whereby learned JMFC has been pleased to hold the applicant guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, and sentenced to undergo simple imprisonment of one year and fine of Rs.5,000/-.

2) Heard Mr. N.K.Majmudar, learned counsel for the applicant –complainant, Mr. Mrudul Barot, learned counsel for respondent No.1 and Mr. Rohan Raval, learned APP for the respondent State.

3) Brief facts of the case are that, the accused having financial need for business, demanded a loan of Rs. 4,70,000/- from the complainant in the month of September-2003 and the accused gave a promise to return the said amount within six months. So, the complainant gave Rs.4,70,000/- to the accused and in order to build trust in return, the accused wrote a promissory note to the complainant. Thereafter, as the accused did not return the said amount to the complainant within time limit and upon demand by the complainant, the accused stated that he did not have sufficient fund in his personal account and therefore, he issued a cheque dated 4/9/04 being cheque No. 409149 of Rs. 4,70,000/- from the account of his proprietor firm Shri Bhavani Jewellers, Manekchowk Co.O. Bank Ltd., Manek Chowk Branch and gave assurance that this cheque would be honored. When the complainant deposited the said cheque in the bank, due to insufficient balance in the accused's account, the said cheque was returned with a return memo of "Today’s Opening Balance Insufficient" on 6/9/04 and the complainant's bank, Bank of Baroda, informed the complainant about the same on 6/9/04. So the complainant through his lawyer issued a notice to the accused on 20/9/04 by registered A.D. and U.P.C., which notice was served on the accused. Pursuant to the same, the accused gave a reply and did not return the money to the complainant within the time limit. Therefore, the complainant filed a complaint against the accused under Section 138 of the Ni Act, before learned Trial Court, in which learned Metropolitan Magistrate has been pleased to hold the applicant guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, and sentenced to undergo simple imprisonment of one year and fine of Rs.5,000/-. The said order was assailed by the accused before the learned Addl. Sessions Court, Ahmedabad City by filing Criminal Appeal No. 2274/2009, in which learned Addl. Sessions Judge has been pleased to set aside the order of conviction and sentence and acquit the accused from the offence under Section 138 of the NI Act vide order dated 22.11.2010.

4) Learned counsel for the applicant–complainant has submitted that the impugned judgment and order passed by the learned lower Appellate Court are illegal, perverse, and contrary to law. It is contended that the findings recorded by the lower Appellate Court are contrary to the oral as well as documentary evidence produced on record before the learned Trial Court. It is further submitted that the lower Appellate Court has exceeded its jurisdiction by taking into consideration facts which were not germane to the issues involved in the proceedings and by relying upon extraneous considerations, which are impermissible while adjudicating proceedings under the provisions of the Negotiable Instruments Act, 1881. Learned counsel has further argued that the statutory notice was duly served at the correct address of the accused and, therefore, the presumption of service under Section 27 of the General Clauses Act,