MANUBHAI GOVINDBHAI PRAJAPATI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr. Harshadkumar D. Panchal, learned advocate on record for the applicant-original complainant, Mr. V.B. Malik, learned advocate on record for the respondent No.2-original accused and Mr. Bhargav Pandya, learned APP appearing for the respondent-State.

(2.) This application is filed under Sec. 378(4) of Cr.P.C., 1973, seeking leave to challenge the judgment and order of acquittal dtd. 17/7/2021 passed by learned Additional Judicial Magistrate First Class, Sami, District- Patan in Criminal Case No.310 of 2019, acquitting the respondent No.2-original accused for the offence alleged to have been committed under Sec. 138 of the N.I. Act.

(3.) Mr. Harshadkumar D. Panchal, learned advocate on record for the applicant-original complainant, has invited attention of this Court to the case of the complainant. He has drawn attention of this Court to the reasons recorded by the trial court and has submitted that the learned Magistrate failed to appreciate the document in the nature of undertaking drawn on Rs.100.00 stamp paper signed by the present accused, which is brought on record as Exh.16, in which, the accused had acknowledged the fact of having received of an amount of Rs.20.00Lakhs in the scheme wherein the complainant had introduced 135 members. He has further invited attention of this Court to Sec. 313 of Cr.P.C. statement reproduced in the impugned order and has submitted that at no stage, the dispute was raised with regard to the signature on the disputed cheque, the contents of the cheque being varied, no reply was given to the legal notice addressed to the accused, though the notice was duly served upon the accused through Registered Post A.D. He therefore, has submitted that presumption available under the law as regard existence of the legal debt, has been established. He has further submitted that the learned Magistrate has not properly appreciated the aforesaid documents brought on record by the complainant, which otherwise clearly goes to prove the offence under Sec. 138 of the N.I. Act. He therefore, urged this Court to grant leave to appeal.