1. The present application is filed by the applicants - legal heirs of the original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short " Cr.P.C .") seeking leave to file an appeal against the judgment and order dated 03.02.2021 passed by the learned 2 nd Additional Chief Judicial Magistrate, Dholka in Criminal Case No. 680 of 2012, whereby the - respondent no. 2 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred Page 1 of 14 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:50:29 IST 2025 NEUTRAL CITATION R/CR.MA/6404/2022 ORDER DATED: 20/02/2025 undefined to as 'the NI Act ").

1.1 The original complainant - Tribhovanbhai Gandabhai and the respondent no. 2 are hereinafter referred to as, "the complainant" and "the accused" as they stood in the original case for the sake of convenience, clarity and brevity.

2. The brief facts culled out from the memo of the present application as well as the impugned judgment and order and paper book filed by the applicant are as under:

30423273408 with State Bank of India. The complainant deposited the cheque on 04.01.2012 in his account with Bank of India, Mafalipur Branch and the cheque was dishonored. The complainant informed the accused telephonically and the cheque was deposited four times as per the instructions of the accused and on depositing the Page 2 of 14 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:50:29 IST 2025 NEUTRAL CITATION R/CR.MA/6404/2022 ORDER DATED: 20/02/2025 undefined cheque for the fifth time on 15.03.2012, the same was dishonored and the reason mentioned in the return memo was "Funds Insufficient". The complainant sent the statutory demand notice to the accused on 16.03.2012 and though it was served on 20.03.2012, no reply was given and no payment was made by the accused. The complainant filed the criminal complaint before the learned 2 nd Additional Chief Judicial Magistrate, Dholka under Section 138 of the NI Act, 1881 which was registered as Criminal Case No. 680 of 2012.

2.2 The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded at Exh. 19 and the evidence of the complainant was taken on record. The complainant was examined on oath and 9 documentary evidences were produced in support of his case and after the closing pursis at Exh. 79 was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure,1973 was recorded, wherein, the accused stated that the facts in examination-in-chief and in the complaint are false and no Page 3 of 14 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:50:29 IST 2025 NEUTRAL CITATION R/CR.MA/6404/2022 ORDER DATED: 20/02/2025 undefined such loan has been taken and no cheque has been issued and a false complaint has been filed to harass the accused. After the evidence of the accused was closed the arguments of the learned advocates for both the parties were heard and by the impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the NI Act.

3. Being aggrieved and dissatisfied with the same, the legal heirs of the original complainant have preferred the present application seeking leave to appeal mainly stating that the learned Trial Court has not properly interpreted the evidence and has misread the evidence and the impugned judgment is perverse, erroneous and contrary to law.

4. Heard learned advocate Ms. Hely Makwana for learned advocate Mr. Aftabhusen Ansari appearing for the applicants, learned APP Ms. Jirga Jhaveri for the respondent no. 1 - State and Mr. Naman H. Kinkhabwala and for the respondent no. 2.

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5. Learned Advocate for the applicants submits that the learned Trial Court has not appreciated that the complainant has successfully established that the cheque in question was issued by the accused from the bank account maintained by him. The complainant has proved that the cheque was written by the accused and it was dishonoured and as the applicant is the holder in due course of the cheque in question the statutory presumption under Section 139 of the NI Act is to be drawn in favour of the applicant. The learned Trial Court has not appreciated the provisions of Section 118 and 138 of the NI Act in proper perspective. The oral contract is not negated by the accused and the fact of the amount paid by the applicant to the accused is also not negated, but the learned Trial Court has disbelieved the same. The accused had failed to rebut the presumption and hence the judgement and order of acquittal is bad in law and the leave to appeal must be granted.

6. Learned APP Ms. Jirga Jhaveri for the State and Mr. Naman H. Kinkhabwala for respondent no. 2 have submitted that the learned Trial Court has appreciated all Page 5 of 14 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:50:29 IST 2025 NEUTRAL CITATION R/CR.MA/6404/2022 ORDER DATED: 20/02/2025 undefined the evidence in detail in light of the citations referred to in the judgement and has passed the judgement and order of acquittal which is proper and no interference is required and hence the application for leave to appeal must be rejected.

7. With regard to the facts in the present case, it would be fit to refer to the observations made the Apex Court in Rangappa vs Sri Mohan reported in 2010 11 SCC 441 in para 14 which is reproduced as under:

NEUTRAL CITATION R/CR.MA/6404/2022 ORDER DATED: 20/02/2025 undefined 7.1 The Apex Court in the case of Basalingappa vs. Mudibasappa reported in 2019 0 AIR(SC) 1983 has observed in Para 23 and 28 as under:

(ii) 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.

(iii) To rebut the presumption, it is open for the Accused to rely on evidence led by him or Accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

(iv) That it is not necessary for the Accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a Page 8 of 14 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:50:29 IST 2025 NEUTRAL CITATION R/CR.MA/6404/2022 ORDER DATED: 20/02/2025 undefined persuasive burden.

(v) It is not necessary for the Accused to come in the witness box to support his defence.

28. We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs. 6 lakhs given to the Accused, within 02 years, amount of Rs. 18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence." 7.2 The Apex Court in the case of Dashrathbhai Trikambhai Patel vs Hitesh Mahendrabhai Patel & Anr. reported in 2023 1 SCC 578 has observed as under:

(iv) The first respondent has made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the 'legally enforceable debt' on the date of maturity. Thus, the first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds; and

(v) The notice demanding the payment of the 'said amount of money' has been interpreted by judgments of this Court to mean the cheque amount. The conditions stipulated in the provisos to Section 138 need to be fulfilled in addition to the ingredients in the substantive part of Section 138 . Since in this case, the first respondent has not committed an offence under Section 138 , the validity of the form of the notice need not be decided."

8. In light of the above settled principles of law and considering the arguments advanced by the learned Page 10 of 14 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:50:29 IST 2025 NEUTRAL CITATION R/CR.MA/6404/2022 ORDER DATED: 20/02/2025 undefined advocates for the parties and on perusal of the record of the case the applicant has filed his examination in chief at Exh. 24 and during the cross-examination has categorically admitted that he has no legal due pending from the accused. The complainant has also admitted that after the cheque was returned for the first time, the notice was sent to the accused by U.P.C. and R.P.A.D. and the reply was given by the accused and thereafter, once again the cheque was deposited on 15.03.2012. That after the first notice was given, no case was filed against the accused and after the cheque returned for the second time, a second notice was given and thereafter, the criminal case has been filed. That when he had deposited the cheque for the last time, he knew that there was no amount in the account of the accused. Moreover, the complainant has also admitted that the notice given on 25.02.2012 was given to Ayubmiya Jamalmiya Kadri and the reply was given on the same day by Ayubmiya Jamalmiya Kadri but he has not produced the reply to the notice on record. From this it transpires that even though the accused had given the cheque in question, Page 11 of 14 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:50:29 IST 2025 NEUTRAL CITATION R/CR.MA/6404/2022 ORDER DATED: 20/02/2025 undefined the notice was not given to the accused but it was given to one Ayubmiya Jamalmiya and there is no explanation about the notice given to a Ayubmiya Jamalmiya or the reply that was given by him. Moreover, there is no evidence as to how the huge amount of ₹7,50,000/- was given by the complainant and the complainant was not sure when and where was the amount given which has created a huge doubt on the financial transaction stated by the complainant.

9. The learned Trial Court has appreciated all the evidence produced by both the parties and has concluded that the complainant has not proved how the amount was paid to the accused. Moreover the complainant has categorically stated that no amount of money is due from the accused and hence there is no legally enforceable debt due to the complainant.

10. The learned Trial Court has relied upon the law laid down by the Apex Court in the case of Hiren P. Dalal reported in AIR 2001 SC 3897, Krishna Janardan Bhat Vs Page 12 of 14 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:50:29 IST 2025 NEUTRAL CITATION R/CR.MA/6404/2022 ORDER DATED: 20/02/2025 undefined Dattatrey Hegde reported in ( 2008)4 SCC 54 and Kumar Exports Vs Sharma Carpets reported in AIR 2009 SC 1518 and in light of the same, has concluded that from evidence on record that the accused had created reasonable doubt and the complainant has failed to produce reliable and cogent evidence on record about the legally recoverable debt from the accused and has not proved the month and year and what amount was given to the accused and the complainant has not proved his case beyond reasonable doubt. The learned Trial Court has concluded that the accused has successfully rebutted the presumption based on preponderance of probability and, in light of the above observation, the learned Trial Court has passed the impugned judgment and order of acquittal, which is just and proper and does not require any interference of this Court.

11. Consequently, the present application seeking leave to present an appeal under Section 378(4) of the Code of Criminal Procedure, 1973 fails and is hereby dismissed. Page 13 of 14 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:50:29 IST 2025

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12. Notice stands discharged. Record and proceedings if any, be sent back to the learned Trial Court forthwith.

13. Since the leave to prefer appeal is rejected, no order is required to be passed in the Criminal Appeal, which is at filing stage and the same stands disposed accordingly.

(S. V. PINTO,J) VASIM S. SAIYED Page 14 of 14 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:50:29 IST 2025