ATULBHAI MUKUNDRAY JOSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr. Tanmay B. Karia, learned advocate on record for the applicant-original complainant, learned advocate Mr. Jaimin Pandya appearing on behalf of Mr. Premal S. Rachh, learned advocate on record for the respondent No.2-original accused and Mr. Bhargav Pandya, learned APP appearing for the respondent-State.

(2.) This is an application seeking leave to appeal filed under Sec. 378(4) of Cr.P.C., 1973, challenging the judgment and order of acquittal dtd. 10/5/2021 passed by the learned Additional Chief Judicial Magistrate, Morbi in Criminal Case No.242 of 2016. By the said judgment and order, the respondent No.2 has been acquitted for the offence alleged under Sec. 138 of the N.I. Act.

(3.) Mr. Tanmay B. Karia, learned advocate on record for the applicant-original complainant, has invited attention of this Court to the findings and reasons recorded by the learned Magistrate while recording the order of acquittal. He has submitted that the learned Magistrate has failed to consider the Sec. 139 of the N.I. Act. He has further submitted that in absence of any challenge to the contents of the cheque and the signature of the complainant on the disputed cheque, the presumption had arisen in favour of the complainant as regard existence of legally enforceable debt or liability. He therefore, submitted that the learned trial court has committed gross error in shifting the burden upon the complainant to prove his case beyond reasonable doubt by leading substantial material on record to indicate the source of income. In support of his submissions, he has relied upon the decision of the Hon'ble Apex Court in the case of T. Vasanthakumar vs. Vijayakumari reported in (2015) Vol. 8 SCC Page No.378. By making the aforesaid submissions, he therefore, urged this Court that the leave to appeal may be granted.