1. This appeal is filed by the appellant - original complainant under the provisions of Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 16.09.2006, passed in Criminal Case No. 359 of 1999 by the learned Judicial Magistrate First Class, Unjha, recording the Page 1 of 21 Downloaded on : Thu Jun 23 21:17:16 IST 2022 R/CR.A/442/2007 JUDGMENT DATED: 23/06/2022 acquittal.

2. Nutshell facts are that appellant - original complainant - Bhumika Lease Finance Ltd. through its Assistant Manager - Jitendrakumar Amrutlal Brahmbhatt, lodged a complaint before the Court that the respondent No. 1 herein had borrowed Rs.45,000/- from the complainant company for development of his business. Since, the respondent No. 1 did not pay the instalments and on being approached by the complainant, he issued a Cheque bearing No. 0170486 dated 20.04.1999 drawn on Bank of Baroda, Ambaji Branch for Rs.2,30,000/-, which, the complainant presented in bank, but the same was returned by the bank with an endorsement "Fund Insufficient" and hence, the complainant issued a legal notice to the respondent No. 1 through advocate by RPAD, which the respondent No. 1 refused to accept, and accordingly, as the respondent No. 1 did not pay the said amount, the complainant was constrained to file complaint before the competent Court at Unjha under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as "the NI Act ").

2.1 Upon such complaint being filed and subsequent to service of summons, the respondent No. 1 appeared before the Court. Since the accused did not plead guilty, trial was proceeded against him. In support, the complainant has examined as many as 6 witnesses and produced several documentary evidence, whereas, the respondent No. 1 - accused has also examined one witness. Vide impugned judgment and order dated 16.09.2006, the learned trial Judge acquitted the accused person. Being aggrieved by the same, the appellant - original complainant has preferred the present appeal.

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3. Heard, learned advocate Mr. Bharat K. Dave for the appellant and learned advocate Mr. Himanshu Padhya for the respondent No. 1.

3.1 The learned advocate for the appellant - original complainant has mainly contended that the learned trial Judge ought to have convicted the accused inasmuch as the cheque in question was duly signed by the respondent No. 1 and came to be dishonoured when presented before the bank for insufficiency of fund. Furthermore, in his submission, the learned trial Judge ought to have appreciated the fact that the cheque was issued for discharge of legal liability towards complainant and the Promissory Note for Rs.45,000/-, Exh. 30 is not disputed by the respondent - accused. Further, it is submitted that the learned trial Judge ought to have held that legal notice upon the respondent No. 1 was issued within the stipulated time, however, the same returned unaccepted. The learned advocate for the appellant further submitted that the learned trial Judge ought to have considered the fact that the respondent - accused was collecting the amount of loan given to different persons by the appellant and the said recovered amount was required to be paid to the appellant and for that, on 15.04.1999, after calculation, the respondent - accused had given the cheque in question. Further, in his submission, the learned trial Judge ought to have held in view of the evidence on record that the accused had failed to rebut the onus of proof and statutory presumption against him.

3.2 The learned advocate for the appellant further submitted that the amount of loan, which was being collected by the respondent - accused was required to be deposited by the accused to the appellant - company for which, the respondent - accused was giving the receipts to them and the said amount Page 3 of 21 Downloaded on : Thu Jun 23 21:17:16 IST 2022 R/CR.A/442/2007 JUDGMENT DATED: 23/06/2022 was deposited in the bank account at Ambaji. He submitted that, this aspect is suggestive of the fact that the cheque in question, for Rs.2,30,000/- was inclusive of the amount recovered by the respondent - accused, which was further required to be deposited to the appellant - company as legal dues. Accordingly, the learned trial Judge ought to have taken into consideration the said aspect of the matter.

3.3 The learned advocate, taking this Court through the oral as well as the documentary evidence on record, submitted that though the case against the accused was proved beyond reasonable doubt and all the witnesses also have supported his case, the learned trial Judge has not properly appreciated the evidence on record and thereby, has committed an error in recording acquittal and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to the facts and evidence on record. Accordingly, he urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal.

4. Per contra, learned advocate Mr. Himanshu for the respondent No. 1 - accused, while supporting the impugned judgment and order of the trial Court, submitted that the learned trial Judge has, after due and proper appreciation and evaluation of the evidence on record, has come to such a conclusion and has acquitted the accused, which is just and proper. He submitted that it is trite law that if two views are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by Page 4 of 21 Downloaded on : Thu Jun 23 21:17:16 IST 2022 R/CR.A/442/2007 JUDGMENT DATED: 23/06/2022 some manifest illegality.

4.1 The learned advocate for the respondent No. 1 - accused submitted that for invoking the provisions of Section 138 of the NI Act, the debt or other liability means a legally enforceable debt or other liability, which the complainant has failed to prove and accordingly, the learned trial Judge has rightly recorded the acquittal.

4.2 The learned advocate for the respondent No. 1 has heavily submitted that the ingredients of the offence alleged against the accused are not proved beyond reasonable doubt and therefore, the learned trial Judge has rightly acquitted the accused of the charges levelled against him. Accordingly, it is requested that no interference is required at the hands of this Court and eventually, it is urged that the present appeal may be dismissed.

5. The Court has also heard the learned APP for the respondent No. 2 - State.

6. Heard, the learned advocates for the respective parties and gone through the impugned judgment and order of the trial Court as well as the material on record.

6.1 Before adverting to the facts of the case, it would be worthwhile to refer to the scope of interference in acquittal appeals. It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption of innocence is available to him under the Page 5 of 21 Downloaded on : Thu Jun 23 21:17:16 IST 2022 R/CR.A/442/2007 JUDGMENT DATED: 23/06/2022 fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.

6.2 Further, if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.

6.3 Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.

6.4 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, "The presumption of innocence which is attached to every accused Page 6 of 21 Downloaded on : Thu Jun 23 21:17:16 IST 2022 R/CR.A/442/2007 JUDGMENT DATED: 23/06/2022 gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".

6.5 Yet in another decision in Chaman Lal v. The State of Himachal Pradesh , rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court has observed as under:

The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P ( 1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State Page 7 of 21 Downloaded on : Thu Jun 23 21:17:16 IST 2022 R/CR.A/442/2007 JUDGMENT DATED: 23/06/2022 of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P ( 2006) 9 SCC 731, State of U.P. v. Ram Veer Singh ( 2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State ( 2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P( 2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure , 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal Page 8 of 21 Downloaded on : Thu Jun 23 21:17:16 IST 2022 R/CR.A/442/2007 JUDGMENT DATED: 23/06/2022 against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

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(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:

9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka , (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:

"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re- appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question Page 11 of 21 Downloaded on : Thu Jun 23 21:17:16 IST 2022 R/CR.A/442/2007 JUDGMENT DATED: 23/06/2022 whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court.

While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) "8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in Page 12 of 21 Downloaded on : Thu Jun 23 21:17:16 IST 2022 R/CR.A/442/2007 JUDGMENT DATED: 23/06/2022 support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."

31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 80910) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of Page 13 of 21 Downloaded on : Thu Jun 23 21:17:16 IST 2022 R/CR.A/442/2007 JUDGMENT DATED: 23/06/2022 acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."

(emphasis supplied)."

7. In the aforesaid backdrop, if Section 138 of NI Act is seen, it speaks as under:

Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.] 7.1 Thus, in the case under NI Act , the cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability. Further, explanation to this section defines the debt and other liability to mean a legally enforceable debt or other liability. In this context, after due appreciation and evaluation of the evidence on record, the learned trial Judge has come to a conclusion that the debt in question cannot be said to be legally enforceable debt and the complainant has failed to prove otherwise. Following aspects have been considered by the learned trial Judge:

7.2 It is observed by the learned trial Judge that in the case on hand, the complainant has not produced any documentary evidence to prove his legal debt from the accused and hence, it cannot be believed that the complainant had legal dues from the respondent - accused. This Court has also gone through the documentary evidence as well as the depositions of the witnesses examined by the complainant to prove its case, however, a perusal of the depositions of the witnesses reveals not an iota of evidence suggesting about the amount of Rs.2,30,000/- was due to the complainant from the accused, except the fact that they had given their due amount (of loan instalments) to the respondent - accused.

7.3 Further, considering the material on record, it appears that the complainant has filed the complaint in question before the learned Magistrate under the provisions of Section 138 of the NI Act towards dishonour of cheque of Rs.45,000/-, the sum, which as per the case of the complainant company itself, was given to the respondent - accused towards loan. A bare perusal of the complaint reveals that there is not single utterance as regards the other dues of the complainant and the complaint is filed only for the loan amount, which, admittedly was of Rs.45,000/- only. Nonetheless, the cheque in question is for Rs.2,30,000/- and for such a differential amount, no justifiable explanation is coming on record. It is the case of the complainant that the said amount is aggregate of loan dues of the complainant as well as other dues, Page 17 of 21 Downloaded on : Thu Jun 23 21:17:16 IST 2022 R/CR.A/442/2007 JUDGMENT DATED: 23/06/2022 however, for other dues, no cogent evidence appears to have been there on record.

7.4 Besides, in the Loan Agreement Exh. 29 also, as per the learned trial Judge there are interpolation/corrections. Further, there found no seal and signature of the appellant - company, except the signature of the respondent - accused in the said agreement, Exh. 29, which ought to have been there.

7.5 In the overall facts and circumstances of the case, the learned trial Judge has come to the conclusion that the debt cannot be said to be the legally enforceable debt, which is sine qua non in such matters and the complainant has failed to prove the same beyond reasonable doubt.

7.6 Further, under Sections 118(a) and 139 of the NI Act, there are provisions as regards presumption. At this juncture, a beneficial reference may be made to a decision of the Apex Court in Basalingappa v. Mudibasappa, MANU/SC/0502/2019 :

7.7 Thus, the presumption Under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. In the instant case, considering the evidence on record, it is observed by the learned trial Judge that the cheque in question appears to have been with the complainant prior to 14.04.1999 i.e. the date of post-card/letter written by the complainant to the respondent - accused. Further, the learned trial Judge observed that within five months only, against the loan amount of Rs.45,000/-, due amount cannot rise to Rs.2,30,000/- and therefore, amount mentioned in the cheque cannot be presumed to be the legally enforceable debt, and the same is justifiably rebutted by the accused. Considering all these aspects of the matter, the learned trial Judge has come to a conclusion that the accused has succeeded in rebutting the presumption, showing preponderance of probability and hence, onus shifts upon the complainant to prove otherwise, however, as said earlier, the complainant has failed to prove that the cheque was drawn towards legally enforceable debt. Accordingly, when the respondent - accused has succeeded in rebutting the presumption, the learned trial Page 19 of 21 Downloaded on : Thu Jun 23 21:17:16 IST 2022 R/CR.A/442/2007 JUDGMENT DATED: 23/06/2022 Judge has rightly come to the conclusion that the said provision would be of no help to the complainant.

7.8 At this juncture, it would be apt to refer to a decision of the Apex Court in Krishna Janardhan Bhat v. Dattaraya G. Hegde , passed in Appeal (Cri.) 518 of 2006 on 11.01.2008, wherein the Court has observed thus:

7.9 Thus, the presumption under Section 139 of the NI Act merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability and existence of legally recoverable debt is not matter of presumption under the said section. Thus, in the case on hand the learned Magistrate has rightly concluded that the dues were not legally recoverable dues.

7.10 On re-appreciation and reevaluation of the ocular and the documentary evidence on record, it transpires that the complainant has failed to prove the case against the accused beyond reasonable doubt inasmuch as the ingredients of the offence alleged are not fulfilled. The Court has gone through in detail the impugned judgment and order and found that the learned trial Judge has meticulously considered the depositions of all the witnesses and came to such a conclusion and in the considered opinion of this Court, the learned trial Judge has Page 20 of 21 Downloaded on : Thu Jun 23 21:17:16 IST 2022 R/CR.A/442/2007 JUDGMENT DATED: 23/06/2022 rightly come to such a conclusion, which do not call for any interference at the hands of this Court.

8. In view of the aforesaid discussion and observations, in the considered opinion of this Court, the complainant has failed to bring home the charge against accused for want of sufficient material. The findings recorded by the learned trial Judge do not call for any interference. Resultantly, the appeal fails and is dismissed accordingly. Impugned judgment and order dated 16.09.2006, passed in Criminal Case No. 359 of 1999 by the learned Judicial Magistrate First Class, Unjha, recording the acquittal is confirmed. Bail bond, if any, shall stand cancelled. R&P, if received, be transmitted back forthwith.

[ A. C. Joshi, J. ] hiren Page 21 of 21 Downloaded on : Thu Jun 23 21:17:16 IST 2022