Order

25/02/2025 Instant criminal leave to appeal has been filed by the appellant-complainant under Section 378(4) Cr.P.C. against the acquittal of the accused-respondent from offence under Section 138 of NI Act vide judgment dated 09.04.2024 passed by learned Chief Judicial Magistrate, Sirohi in Regular Cr. Case No.779/2018.

Brief facts of the case are that for a legally enforceable debt, accused-respondent had given a cheque of Rs.4,34,700/- of his banker to the appellant, which was presented in the Bank and was returned with an endorsement of “insufficient fund”. Thereafter, the appellant sent a legal notice to the accused-respondent, which was duly served upon him. Despite service of legal notice, the accused-respondent did not pay the amount. Hence, the appellant filed complaint under Section 138 of NI Act before the trial court.

On the complaint, the trial court took cognizance against the accused-respondent under Section 138 of NI Act and thereafter framed charge against him.

In support of the complaint, the appellant examined herself as PW-1 and exhibited various documents. Thereafter, statement of accused respondent was recorded under section 313 Cr.P.C. Upon conclusion of the trial, the learned trial court vide impugned judgment dated 09.04.2024 acquitted the accused- respondent from offence under Section 138 of NI Act. Hence, this criminal leave to appeal.

Learned counsel for the appellant-complainant submits that the learned trial court has committed grave error in acquitting the accused-respondent for offence under Section 138 of NI Act. While passing the impugned judgment, the learned trial court did not consider the fact that the signature on the cheque was not denied by the accused-respondent and therefore, offence under 138 of NI Act is made out against the accused-respondent. The appellant by producing oral and documentary evidence has proved the burden that the cheque in question was given to him by the accused- respondent against the legal liability of borrowed money. But the learned trial court without appreciating the evidence in proper manner, acquitted the accused-respondent. Thus, the impugned judgment being per se illegal deserves to be quashed and set aside and the accused-respondent No.2 ought to have been convicted and sentenced for offence under Section 138 of NI Act.

Learned counsel for respondent has vehemently opposed the prayer made by the counsel for the petitioner and submitted that the cheque was issued in the year 2017 in the name of Firm Arihant Market Organization and the said firm was closed in the year 2015. Since, the Firm was closed in the year 2015, therefore, the petitioner cannot file a complaint being proprietor of the said closed firm in the year 2017 and the same is against the legal provisions. The learned trial court has considered each and every aspect of the matter and has rightly acquitted the accused- respondent. The order of acquittal is just and proper and therefore, no interference is required.

Heard learned counsel for the parties and perused the evidence of the prosecution as well as defence and the judgment passed by the trial.

On perusal of the impugned judgment, it appears that the complaint was filed by the petitioner against the respondent being the proprietor of Firm Arihant Market Organization and the said firm was closed way back in the year 2015. The petitioner did not produce any documents in respect of the said firm before the trial court. The cheque in dispute was issued in year 2017. As the firm was not in existence since 2015, the petitioner cannot file a complaint being proprietor of the said closed firm in the year

2017, which is against the law.

The learned trial court while passing the impugned judgment has considered each and every aspect of the matter and also considered the evidence produced before it in its right perspective. The prosecution has failed to prove its case against the accused- respondent beyond all reasonable doubts and thus, the trial cour