SHAIKH YUSUFKHAN HAMIDKHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The applicant-original complainant has filed the present application seeking leave to appeal under Section 378(4) of the Cr.P.C. in respect of the judgment and order of acquittal dated 11.12.2020 passed by the learned 2nd Additional Judicial Magistrate First Class, Himmatnagar (hereinafter referred to as "the trial Court") in Criminal Case No. 33 of 2015 whereby the trial Court has acquitted the respondent No. 2 -original accused from the charges levelled against him under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act").

(2.) The case of the applicant-complainant before the trial Court was that the applicant happened to know the respondent -accused as he was a good friend of his brother and the accused was doing the business of facilitating the persons in getting job abroad (Saudi Arabia). Around two years back, the accused had charged Rs.1,80,000/- giving assurance to a friend of the complainant that he would get a job for him in Saudi Arabia, however the accused did not arrange the job as per the promise made by him. When the complainant demanded the said money back from the accused, he gave a cheque of Rs. 1,80,000/- to the complainant. The complainant having presented the cheque in the Bank of India, Mehsana Branch on 25.09.2014, the said cheque had returned with the endorsement "funds insufficient" on 28.10.2014. The complainant thereafter had issued a notice to the accused on 25.11.2014 calling upon him to make payment of the cheque, however the said notice was returned by the postal department as the accused was not found at the given address. Thereafter, the complainant filed a complaint before the Trial Court which was registered as the Criminal Case No. 33 of 2015. The trial Court after appreciating the evidence adduced by the complainant and considering the defence of the accused, acquitted the respondent-accused from the charges levelled against him under Section 138 of the said Act. The aggrieved complainant therefore has filed the present application seeking leave to appeal against the said judgment and order passed by the trial Court.

(3.) The learned Advocate Mr. Pratik Barot appearing for the applicant submitted that the respondent in his further statement recorded before the trial Court under Section 313 of the Cr.P.C. had neither disputed the signature on the cheque nor the very issuance of the cheque in question. According to him, the trial Court had committed an error in not raising a legal presumption in favour of the applicant-complainant under Section 139 of the said Act. The very fact that the respondent- accused had issued the cheque in favour of he complainant implied that it was issued towards the discharge of his debt or liability and the said cheque having been dishonored, a clear case for the offences under Section 138 of the said Act was made out.