ORDER

Heard on I.A. No.3761/2024, which is an application filed u/S 378(4) of Cr.P.C. for grant of leave to appeal.

2. Appellant/complainant has preferred this application under Section 378(4) of Cr.P.C. seeking grant of leave to appeal against the judgement of acquittal dated 09.11.2023 passed by the Court of JMFC, Sailana, District Ratlam (M.P.) in Case No.SCNIA/10/2021, whereby learned Magistrate has acquitted the respondent for an offence punishable u/S 138 of the Negotiable Instruments Act (in short "the N.I. Act").

2. Case of the appellant/complainant in brief is that the respondent/accused and his relative Vijay Singh had taken Mahindra Pick-up truck bearing registration No.MP-43-G-3529 owned by the complainant on monthly rent for a sum of Rs.21,000/-and an agreement (Ex.P/4) was executed by the parties on 12.09.2018. The rent amount was to be deposited in the bank account of father of the complainant Var Singh. Accused had given a cheque bearing No.116535 (Ex.P/3) to the complainant party as a security. It is also alleged that accused had not paid rent of 08 months and had gotten the vehicle damaged at the rear side. Sum of rent and damage amounted to Rs.1,80,000/-, which was demanded by the complainant. Then the accused issued the aforesaid cheque mentioning the aforesaid amount, post dated 10.04.2019. The complainant had submitted the cheque for withdrawal at Central Bank of India, Branch Raoti but on 30.04.2019, the cheque was returned back unpaid with the endorsement i.e. “payment stopped by the drawer”. The complainant on 25.05.2019 had sent a registered notice (Ex.P/1) through his counsel to the accused but after receiving the notice, he neither replied to the notice nor paid the amount. Therefore, the complaint u/S 138 of the N.I. Act was filed by the complainant.

3. Learned Trial Court, after recording the statement of complainant Sanwariya (PW/1), examined him u/S 313 of Cr.P.C. The accused did not wish to examine himself or any other witness in his defence. At the time of passing of the impugned judgement, learned Trial Court has given the findings, which reads as under:-

“1. The complainant has not mentioned the date of presenting the cheque neither in the written complaint nor in the examination-in-chief. Therefore, it is not clear that when the complainant presented the cheque in the bank for withdrawal.

2. The complainant has not filed and proved bank’s slip (endorsement memo) in light of Section 146 of the NI Act. Therefore, it cannot be presumed that the questioned cheque has been dishonoured.

3. The complainant has failed to prove the date of dishonour of the cheque.”

4. On the aforementioned grounds, learned Trial Court has not found proved the offence and acquitted the respondent/accused.

5. Learned counsel for the appellant submits that the complainant had clearly mentioned that cheque was dishonoured on 30.04.2019. The appellant had also duly proved that demand notice was duly served to the respondent/accused. Learned Trial Court, without considering the aforesaid evidence has wrongly rejected the complaint and acquitted the respondent/accused. However, it is fairly submitted that bank slip (endorsement memo) has not been filed in the case before the Trial Court. Hence, the order of acquittal is totally illegal therefore, impugned judgement is liable to be set aside. Hence, it is prayed that the application for leave to appeal be allowed.

6. Having considered the submissions advanced by learned counsel for the appellant and on perusal of record of the Trial Court, it appears that learned Trial Court has properly assessed the evidence available on record adduced by the complainant. The appellant did not file bank’s slip (endorsement memo) before learned Trial Court. The appellant also failed to prove that he submitted the cheque before the concerned bank and consequently the cheque was dishonoured. Therefore, learned Trial Court has rightly dismissed the complaint and acquitted the respondent/ a