DHIRUBHAI RANANBHAI BHANDERI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an appeal under Section 378 of the Code of Criminal Procedure, 1973, where, the original complainant has approached this Court being aggrieved and dissatisfied with the judgment and order passed by the learned Judicial Magistrate, First Class, Visavadar, Junagadh (for short, 'trial Court'), rendered in Criminal Case No. 34 of 2017, Dated: 212.2017, whereby, opponent No.2 is ordered to be acquitted from the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('NI Act', hereinafter).

(2.) The case of the appellant-original complainant is that he is possessions two vehicles, i.e. one is a mounting vehicle bearing registration No. GJ-3-EA-9785 and another is compressor vehicle bearing registration No. GJ-3- EA-9784, which he sold to the original accusedopponent No. 2, herein, by executing an agreement on 28.12015, whereby, the total value of both the vehicles was fixed at Rs. 60.51/- lakh. Opponent No.2 paid a sum of Rs. 10.51/- lakh in cash and had given five post dated cheques of Rs. 10/- lakh each towards the remaining amount of consideration to the appellant.

(3.) This Court has heard the learned Advocate, Mr. Mehta, for the appellant, who has urged that when the cheques have been dishonoured, the presumptions available under Sections 118 and 139 of the NI Act ought to have been drawn in favour of the appellant by the trial Court. Unless rebutted, legal presumptions ought to have been drawn in favour of the appellant. The Court, unfortunately, had not taken into account the settled legal position and instead appreciated the evidence erroneously and illegally. He, further, has urged that it is not in dispute that both the cheques had been dishonoured and the memorandum to that effect had been received from the bank concerned.