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 31.12.2007, passed in Criminal Case No. 3455 of 2002 by the learned Metropolitan Magistrate, Court No. 7, Ahmedabad Page 1 of 21 Downloaded on : Fri Jun 17 21:05:00 IST 2022 R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 recording the acquittal.

2. Facts, in brief, are that appellant - original complainant - Maheshbhai Fatelal Patwari, lodged a complaint before the Court that the respondent No. 1 herein had borrowed Rs.80,000/- from him and for the same, he issued a Cheque bearing No. 94227 dated 11.07.2002 drawn on Bhavnagar Mercantile Co-op. Bank Ltd., Bhavnagar, which, the complainant presented in bank, but the same was returned by the bank with an endorsement "Account Closed" on 15.07.2002 and hence, the complainant issued a legal notice dated 26.07.2002 to the respondent No. 1 through his advocate by RPAD & UPC, which though served upon the respondent No. 1 on 29.07.2002, the respondent No. 1 did not repay the said amount and hence, the complainant was constrained to file complaint before the competent Court at Ahmedabad 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. Vide impugned judgment and order dated 31.12.2007, the learned trial Judge acquitted the accused person. Being aggrieved by the same, the appellant - original complainant has preferred the present appeal.

3. Heard, learned advocate Mr. Sanjay Prajapati for the appellant - original complainant, learned advocate Paresh Darji for the respondent No. 1 and learned APP Ms. Jirga Jhaveri for the respondent No. 2 - State.

3.1 The learned advocate for the appellant - original Page 2 of 21 Downloaded on : Fri Jun 17 21:05:00 IST 2022 R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 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 with an endorsement, "Account Closed". 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. Further, the signature on the cheque was also not in dispute.

3.2 The learned advocate for the appellant further submitted that the learned trial Judge has failed to take into consideration the material aspect of the matter that the respondent No. 1 - accused used to borrow money from the appellant - complainant frequently and also return the same and the appellant had trust upon the respondent - accused and hence, no record was being kept by the appellant and in the circumstance, it cannot be presumed/held that there were no legal dues from the respondent - accused.

3.3 The learned advocate for the appellant - complainant further submitted that the respondent - accused had closed his account and the appellant has not misused the cheque in question, as averred by the respondent - accused.

3.4 The learned advocate for the appellant - complainant further submitted that on one hand the respondent - accused did not reveal the time and date on which his cheque book was lost and on the other hand, he stated that one Chimanbhai had lost his cheque book, and such an act of the respondent - accused creates doubt. Further, there is nothing on record to show that the respondent - accused had taken any steps as regards his Page 3 of 21 Downloaded on : Fri Jun 17 21:05:00 IST 2022 R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 lost/stolen cheque book. He submitted that from the facts and circumstances of the case, it was clear that the respondent - accused had personally given the duly signed cheque to the complainant and the respondent - accused had created got up story with a view to mislead the Court, however, the learned trial Judge has failed to consider the same. 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.

3.5 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, however, 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. Paresh Darji 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 Page 4 of 21 Downloaded on : Fri Jun 17 21:05:00 IST 2022 R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 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.

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. Further, there are several contradictions in the version of the complainant himself, 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 Page 5 of 21 Downloaded on : Fri Jun 17 21:05:00 IST 2022 R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 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 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.

R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 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 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 Page 7 of 21 Downloaded on : Fri Jun 17 21:05:00 IST 2022 R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 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 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.

R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 (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 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."

R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022

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;

(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 Page 11 of 21 Downloaded on : Fri Jun 17 21:05:00 IST 2022 R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 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 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 Page 12 of 21 Downloaded on : Fri Jun 17 21:05:00 IST 2022 R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 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 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 Page 13 of 21 Downloaded on : Fri Jun 17 21:05:00 IST 2022 R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 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 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:

Provided that nothing contained in this section shall apply unless--

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

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 Page 15 of 21 Downloaded on : Fri Jun 17 21:05:00 IST 2022 R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 other liability.

7.2 In above context, after due appreciation and evaluation of the evidence on record, the learned trial Judge has come to a conclusion that the complainant has failed to prove that he had a legally enforceable debt from the respondent - accused. It is observed by the learned trial Judge that, it is the case of the complainant that he used to give money to the respondent - accused out of relation and on trust and the respondent - accused also used to return the same. However, the complainant admits in his deposition that he did not maintain any account qua such lending of money to the respondent - accused. It is further observed that the appellant did not have any receipt qua Rs.80,000/- allegedly given to the respondent - accused. Further, in paragraph 11 of the impugned judgment and order, it is observed by the learned trial Judge that in his examination-in- chief, the complainant states that he had personal relations with the respondent - accused and they both used to visit each other. The respondent - accused used to visit the complainant whenever he had been to Ahmedabad, however, in his cross- examination, he clearly states that he had never been to the home of the respondent - accused, neither the accused had, and they did not know each other. Moreover, it is observed by the learned trial Judge that the complainant was serving in the Naroda Nagrik Co-op. Bank as Clerk, however, he did not know as to on which date he had lent the money to the accused and no noting had been kept by the complainant nor was there any documentary evidence to prove the legal debt from the respondent - accused. Accordingly, the learned trial Judge, further goes to observe that there are several contradictions in the version of the complainant himself. It is also observed that, as per the complainant, he had met the accused four years ago Page 16 of 21 Downloaded on : Fri Jun 17 21:05:00 IST 2022 R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 at Chimanbhai's place and hence, it cannot be believed that he lent such a big amount of Rs.80,000/- to the respondent - accused only after one meeting. It is further observed by the learned trial Judge that, it is the case of the respondent - accused that he had closed his account quite earlier i.e. in April 2000. Thus, when there are several contradictions in the version of the complainant himself, his evidence cannot be believed, more particularly, to base the conviction. This Court also gone through the aforesaid deposition of the complainant, Exh. 4 in detail. 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.

7.3 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 :

7.4 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.

7.5 It would also 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:

7.6 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 a not matter Page 18 of 21 Downloaded on : Fri Jun 17 21:05:00 IST 2022 R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 of presumption under the said section. In the case on hand the learned Magistrate has rightly concluded that the dues were not legally recoverable dues.

7.7 In P. Venugopal v. Madan P. Sarathi, MANU/SC/8264/2008 it is held by the Apex Court that, "Initial burden on complainant to prove grant of loan. The presumption raised in favour of holder of cheque must be confined to matters covered thereby and does not extend to extent that cheque was issued for discharge of debt or liability which is required to be proved by complainant." In the instant case, when the complainant has failed to fulfill the initial burden of proving the legally enforceable debt and from the evidence of the complainant, when there appears several contradictions, the presumption against the respondent - accused is justifiably rebutted.

7.8 Following aspects have been weighed by the Court:

examination that he had never been to the place of the respondent neither the respondent to his;

iii) the complainant admittedly has no noting qua the Page 19 of 21 Downloaded on : Fri Jun 17 21:05:00 IST 2022 R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 amount in question given to the respondent nor has the details of past lending in support of his case;

iv) admittedly, the cheque in question is of 2002, whereas, the respondent - accused had already closed his account in the Year 2000 (April 2000), that is much prior to issuance of cheque;

v) contrary to his version, the complainant admits to be not knowing the respondent - accused, then too, as to what made him to lend such an amount to the respondent, is not coming on record, neither any explanation in that regard is there on record;

vi) there are contradictions in the version of the complainant.

7.9 Thus, on re-appreciation and reevaluation of the oral as well as 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 evidence on record and come to such a conclusion. In the considered opinion of this Court, the learned trial Judge has 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 Page 20 of 21 Downloaded on : Fri Jun 17 21:05:00 IST 2022 R/CR.A/2464/2008 JUDGMENT DATED: 17/06/2022 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 31.12.2007, passed in Criminal Case No. 3455 of 2002 by the learned Metropolitan Magistrate, Court No. 7, Ahmedabad, 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 : Fri Jun 17 21:05:00 IST 2022