MUKESHBHAI PARSOTTAMBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The applicant original complainant has filed this Criminal Miscellaneous Application under Section 378 of the Criminal Procedure Code, 1973 seeking leave to Appeal against the judgment and order dated 24.07.2020 passed by the Chief Judicial Magistrate, Surat (hereinafter referred to as 'the trial Court') in Criminal Case No.27051/2018 whereby the respondent No.2-accused was acquitted from the charges leveled against him for the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the said Act).

(2.) The applicant / complainant had filed the complaint before the trial Court against the respondent No.2 accused alleging inter-alia that the complainant and the accused were friends and the accused was residing opposite to the house of the complainant. The accused was carrying on the business of bicycle repairing. Since the accused was in need of money for purchasing a house, the complainant had paid the accused in installments a sum of Rs.12,18,000/- between the period January 2016 to December 2016. When the complainant demanded the money back, the accused issued a cheque dated 26.03.2018 for Rs.10,00,000/- in favour of the complainant. The said cheque when came to be presented in the Bank by the complainant was returned dishonored with an endorsement 'Account Closed' on 31.03.2018. The complainant thereafter, through his Advocate gave a legal notice to the accused demanding the cheque amount on 13.04.2018, to which the accused gave an evasive reply on 23.04.2018. The complainant therefore, filed the complaint under Section 138 of the said Act.

(3.) During the course of the trial, the applicant-complainant had examined himself at Exhibit 4 and had examined other witnesses, and had also produced the documentary evidence. The accused had also examined himself at Exhibit 25. The respondent accused had stated in his further statement recorded under Section 313 of the Code that the complainant had obtained a cheque from a third party and had misused the cheque. The Trial Court after appreciating the evidence on record came to the conclusion that the complainant had failed to prove the charges levelled against the accused beyond reasonable doubt and that the accused had successfully rebutted the presumption under Section 139 of the said Act. The trial Court gave the benefit of doubt to the respondent-accused and passed the impugned judgment and order. Being aggrieved by the said judgment and order, the applicant has filed the present application seeking leave to Appeal under Section 378(4) of the Criminal Procedure Code, 1973.