JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. Present appeal is filed by the appellant-original complainant under Section 378 of the Criminal Procedure Code, 1973 (“Cr.P.C.” for short) against the impugned judgment and order dated 21.1.2008 passed by the learned Judicial Magistrate First Class, Court-1, Surat (hereinafter be referred to as “the trial Court”) in Criminal Case No. 491 of 2003, whereby the trial Court has acquitted the respondents accused persons for the offences punishable under Section 138 of the Negotiable Instrument Act, 1881 (“N.I. Act” for short). 2. The facts giving rise to present appeal are that the complainant is doing business of manufacturing gray cloths and the respondent no. 1 is a Firm doing business as Shroff and Commission Agent and the respondents-2 and 3 are the partners of the said firm. 2.1 The complainant was receiving the payment by cheques from the parties to whom he was selling his cloths and for the need of immediate payment he was giving his cheques and drafts to the respondent-1 firm and the respondents were after deducting their commission, were making payment to the complainant and that's how the transactions were made. The complainant was giving the drafts and cheques to the respondents and the respondents were issuing cheque/s against the said drafts and cheques, and for such transaction one cheque of Rs.93,840/- being Cheque No. 89522 of Surat Nagarik Sahakari Bank Ltd. dated 23/1/2003 was issued by the respondents in favour of the complainant. The said cheque was deposited in the account of the complainant in Bombay Mercantile Bank Ltd. on 5/2/2003 upon the instructions from the respondents. 2.2 The said cheque has been dishonoured on 7/2/2003 with an endorsement “insufficient funds.” A Notice U/s. 138 of the Negotiable Instruments Act was issued by the complainant on 10/2/2003 and the reply was given by the respondents on 18/2/2003 and as the payment has not been made within the Notice period, the complaint was filed in the trial Court, Surat U/s. 138 of the N.I. Act. 2.3 In response to the complaint, the process was issued against the respondents and they have appeared before the trial Court and have pleaded not guilty to the charge and thereafter, the oral as well as documentary evidence was led from both the parties and after recording the evidence, the trial Court vide judgment and order dated 21.1.2008 passed in Criminal Case No. 491 of 2003 acquitted the respondents. 2.4 Being aggrieved and dissatisfied with the judgment and order dated 21/1/2008 in Criminal Case No. 491/2003 by the trial Court, the appellant has preferred present appeal. 3. Heard Mr. Jayesh A Dave, learned Counsel for the appellant and Mr. Harshadray A. Dave, learned Counsel for the respondent accused. 4. Mr. Jayesh Dave, learned Counsel appearing on behalf of the appellant original complainant has submitted that the trial Court has committed an error of law and facts both while interpreting the contents of the notice and the complaint and also the oral evidence produced before the Court and the trial Court has completely overlooked the said piece of evidence produced by the complainant. He has also submitted that the appellant has proved his case by producing relevant material before the trial Court. He has submitted that the impugned cheque issued by the respondents and the signature on the cheque was not disputed by the respondents and therefore, initial burden is already proved before the trial Court beyond reasonable doubt however, the evidence of the complainant and the documentary evidence like the notice and the complaint is not properly appreciated by the trial Court in its true and proper spirit, while passing the impugned judgment and order of acquittal. 4.1 Mr. Jayesh Dave, learned Counsel appearing on behalf of the appellant has also submitted that the respondent no. 1 is a corporation run by the partnership firm and the partners have been joined in the present proceedings however, the said fact of the case was not properly appreciated by the trial Court, while considering the evidence of present appellant and has committed a serious error of law and on facts both. 4.2 In view of the above submissions, Mr. Jayesh Dave, learned Counsel appearing on behalf of the appellant urges before the Court that the impugned judgment and order passed by the trial Court may be quashed and set aside and present Appeal may be allowed. 5. As against that Mr. 4.2 In view of the above submissions, Mr. Jayesh Dave, learned Counsel appearing on behalf of the appellant urges before the Court that the impugned judgment and order passed by the trial Court may be quashed and set aside and present Appeal may be allowed. 5. As against that Mr. Harshadray Dave, learned Counsel for the respondents accused has submitted that the trial Court has not committed any error while passing the impugned judgment and order of acquittal and it is in consonance with the settled legal principle of law and after appreciating the evidence produced by the appellant and also after appreciating the oral as well as documentary evidence, learned trial Court has passed the impugned judgment and order of acquittal. 5.1 Mr. Harshadray Dave, learned Counsel for the respondents accused has submitted that after appreciating the oral as well as documentary evidence as well as other relevant material, the trial Court has passed the impugned order and therefore, the impugned judgment and order passed by the trial Court may be confirmed and present appeal may be dismissed. 5.2 Mr. Harshadray Dave, learned Counsel for the respondent accused has emphasized upon the cross examination of the complainant which is recorded by the trial Court at Exh.11. Relevant part and discussion of the same reads as under: “Further Cross-examination on oath. I went to Krishna Corporation but did not take anybody with me. I had not stated any other firm to do a transaction with these accused. I do not recall the amount of the said draft. I went for the draft to be discounted (through a Sharaf). It was not my own draft, for which I had gone to get it discounted. It was third-party draft. Therefore, I did not deposit in my account. If I had deposited it in my bank, I would have gotten the amount within a day. Banks do not accept third-party Cheques. When I bought the draft, I was aware that banks do not accept third-party Cheques. I did not inquire as to how the Krishna firm was. It is true that, cheques were issued to me in the capacity if a partner. I purchase from the party through “A/c payee” Cheques. There are total of 12 men working with 48 machines. In total, only 12 men work there. I pay salaries only in cash to these 12 men. It is true that, cheques were issued to me in the capacity if a partner. I purchase from the party through “A/c payee” Cheques. There are total of 12 men working with 48 machines. In total, only 12 men work there. I pay salaries only in cash to these 12 men. I show that salary in our salary. I need not to borrow the money from the outside to pay these salaries. I pay salaries on the 8th and 23rd. It is true that I have Rs. 45,000/- in cash on our hand on every 8th and 23rd. I tell that I have Rs. 22,500/- on the 8th and Rs. 22,500/- on the 23rd on hand. The light bill for the machines is 60,000/- per month. The light bill is paid through cheque. The light bill is paid on the 23rd. I borrow money on an unsecured basis to pay the light bill. It is true that there is around Rs. 80,000/- amount in my account on the 23rd. My household expenses are Rs. 15,000/- to 20,000/- per month. I pay in cash for the milk, and I pay through a cheque for the light bill, telephone bill and mobile bill. The bills have to be paid on different dates. When this case was filed, my income was Rs. 65,000/- to 70,000/- per month. My profit was Rs. 65,000/- to 70,000/-. It is not true that, when this case was filed, I did not need money. So, I gave this draft, given by Krishna Corporation, on 23/01/2003 at 03-00 pm. I know that bank working hours are over at 03-00 pm. It is true that I know that money is deposited after the bank’s working hours. It is true that, usually once the day is over, a cheque with the same day date is not given. It is true that I was in urgent need of money. The accused gave me the cheque on 23/01/2003. Question - As you needed money on the next day, did you deposit the cheque in the bank? Answer - They refused me via call. Question - You were refused via call to deposit the cheque, is that fact stated in the notice or complaint? Answer - I have not stated this fact in my notice or complaint. Question - Did you see the cheque carrying in your hand? Answer - Yes. Answer - They refused me via call. Question - You were refused via call to deposit the cheque, is that fact stated in the notice or complaint? Answer - I have not stated this fact in my notice or complaint. Question - Did you see the cheque carrying in your hand? Answer - Yes. Question - Did you see as to whose name was in the cheque as the issuer of the cheque? Answer - It was Krishna Corporation. Question - Did you see whether a stamp of a partnership firm or a firm was there? Answer - A stamp of a partnership firm was there. Question - When you were given a notice, did you show the cheque or memo to your advocate? Answer - Yes, I showed. Question - A cheque of partnership firm was given, did you state that fact to your advocate? Answer - Yes. Question - According to the provisions of law, the partnership firm has to be served a notice. Did you state this to your advocate? Answer - Yes. Question - As per so, have you served a notice to the partnership firm? Answer - Yes. Question - A notice was served to the partnership firm. Do you say that by looking at the notice? Answer - Yes. Question - Have you mentioned such in that notice that Krishna Corporation is a partnership firm? Answer - Yes. Question - Can you state by looking at the notice that the partnership firm is mentioned? Answer - I state by looking at the notice, Exhibit-15, that, the partnership firm has not been mentioned in the Exhibit-15. Question - In the notice of Exhibit-15, Pushkarbhai is served with a notice. Is it served as a partner? Answer - Yes, as a partner. Question - Beside this, you sent a notice as partner? Answer - No. Question - Did you state any answer for the accused against the notice given by us? Answer - Yes. Question - Did you read the answer? Answer - Yes, I read. Question - Did you find from the answer of the notice that Pushkarbhai is not a responsible person for the firm or partnership firm? Answer: Yes. Question: Whether you gave any notice to Pushkarbhai or a notice for knowing the names of the partners? Answer - Yes. Question - Did you read the answer? Answer - Yes, I read. Question - Did you find from the answer of the notice that Pushkarbhai is not a responsible person for the firm or partnership firm? Answer: Yes. Question: Whether you gave any notice to Pushkarbhai or a notice for knowing the names of the partners? Answer: No. Question: Whether you informed or not to your person as to the fact that Pushkarbhai is not a partner of M/s. Krishna Corporation. Answer: No. Question: Whether any reply to the notice was serviced to your Advocate or not? Answer: Yes. Question: Can a complaint under Section 138 of the Negotiable Instrument Act be instituted against a person where he has been serviced a notice as per the law? Answer: I am aware about it. Question: A complaint cannot be instituted against a person to whom a notice has not been serviced. Answer: Yes. Question: Is it true that if such a complaint has been instituted it is deemed as a false complaint? Answer: It is false. Question: Whether you served any notice on Vimalbhai or Premalbhai with regard to the complaint? Answer: No. Question: Whether you felt any need for giving a notice? Answer: No. Question: All the details on the cheque which I had brought from M/s. Krishna Corporation were in Gujarati vernacular. The details in the cheque were recorded in Gujarati vernacular. I am shown the Cheque at Exhibit 12. Answer: It is the same cheque. Question: Whether the details in the cheque are recorded in Gujarati vernacular? Answer: No. Question: Whether the cheque at Exhibit 12 has been drafted using different ball-pens? Answer: It is false. Question: Who went to deposit the cheque in the Bank? Answer: I personally went there to deposit the cheque. Question: Whether the memo of the bank was filled in your presence or not? Answer: No. Question: Whether the Bank Manager signed it in your presence or not? Answer: No. Question: Whether the notice given by you contains your signature or not? Answer: The notice at Exhibit 15 contains my signature. Question: Whether it was you who sent the notice through Registered AD and U.P.C.? Answer: No. Question: Whether you have personal information or not with regard to sending the notice? Answer: No. Question: How many notices were served? Answer: Two notices were served. Answer: The notice at Exhibit 15 contains my signature. Question: Whether it was you who sent the notice through Registered AD and U.P.C.? Answer: No. Question: Whether you have personal information or not with regard to sending the notice? Answer: No. Question: How many notices were served? Answer: Two notices were served. Question: Whether both the notices were served through your Advocate Shri Pravinbhai or not? Answer: Yes. Question: Do you rely on both the notices? Answer: Yes. Question: Do you want to produce the Second Notice at the present stage? Answer: No. The matter is adjourned pursuant to an application by the Ld. Advocate for the accused. Before Me Sd/- (illegible) J.M.F.C. (First Court), Surat. Oath administered. The Memo of cheque dishonor was not filled in my presence. I cannot state as to who has signed the Memo. I had received all the amounts pertaining to the different cheques collected by me except this one. I am not aware if M/s. Krishna Corporation lends money on unsecured loan basis. I do not wish to produce any receipt of the cheques collected by me earlier. I do not wish to produce any evidence corroborating that I had given any draft to the accused against which he had given me a cheque. I do not wish to produce any evidence as to the fact that I and M/s. Krishna Corporation had entered into transactions, earlier. It is not true that I had gone to M/s. Krishna Corporation for borrowing money on unsecured loan basis. It is not true that I had not given the so-called draft to M/s. Krishna Corporation. It is not true that I had borrowed money from M/s. Krishna Corporation and then I refused to repay and therefore, I am deposing wrongfully. It is not true that any such instrument has not been deposited by me in my bank account and no such instrument has been dishonored. It is not true that not any notice has been issued on my instructions. It is not true that all the facts of the complaint are false. It is not true that a false complaint has been instituted so that I need not to return the money received vide the cheque. It is not true that not any of my legal due to the accused has been received. It is not true that I have not produced any documentary evidence. It is not true that a false complaint has been instituted so that I need not to return the money received vide the cheque. It is not true that not any of my legal due to the accused has been received. It is not true that I have not produced any documentary evidence. The witness states voluntarily that I had produced the cheque before the Court. It is true that I have not produced any documentary evidence as to the fact that how and from which place I had received the draft. It is not true that all the facts about the drafts have been fabricated by me. It is true that I have not submitted any entry against the draft to the Income Tax Department. I have neither produced the details before the Court as to the so-called draft was issued against which bill. I have not produced the details before the Court as to the fact that the draft was received from which trader. It is not true that I have given a false complaint against the accused. No re-examination. The deposition has been read over to the deponent which he accepts as true. Surat 06/04/2005 Sd/- (illegible) J.M.F.C. (First Court), Surat. Before Me Sd/- (illegible) J.M.F.C. (First Court), Surat.” 5.3 In view of the same, learned Counsel for the respondent has submitted that the complainant himself has admitted the fact that the facts which were narrated before the Court while giving oral evidence, he has not stated these facts in his notice as well as in complaint, and he has stated the same for the first time before the Court. He has submitted that so far as the facts relating to the disputed cheque is concerned, the complainant has not stated and uttered a single word before the Court and adamantly he has refused to produce any documentary evidence before the Court, which shows the conduct of the appellant that the fact stated by the appellant was not supported by any of the documentary evidence nor he is ready and willing to produce the documentary evidence before the Court. 5.4 In view of the above submissions, learned Counsel for the respondents submits that the impugned judgment and order of trial Court is in consonance with the settled legal principle and the same may be confirmed and present appeal filed against the acquittal of the respondents accused may be dismissed. 6. I have perused the material available on record as well as the documents appended thereto. I have also gone through the impugned judgment and order of acquittal passed by the trial Court. I have also examined the evidence recorded by the trial Court. 7. It is appropriate to note herein that though it is a case of the appellant that he has received the draft from the outside and the said draft was handed over to present respondents for the purpose of clearing, surprisingly in his cross examination the appellant has admitted that he was not aware that from whom he has received the draft and which day the draft was given to the respondents. In fact, earlier the complainant said that the draft was of the year 2003 and subsequently, he realized that it was not of the year 2003 and therefore, immediately he turned and stated that it was of the year 2002. So his evidence is not in consonance with the facts narrated in the notice or in complaint. Further the complainant has also admitted that he has received a reply from the other side however, he has not produced the copy of the reply before the Court along with the documentary evidence. All these facts lead to the Court to a conclusion that the complaint filed by the original complainant was rightly disbelieved by the trial Court. 8. Further, the deposition of the concerned witnesses clearly established that the present appellant original complaint was not stating true and correct facts before the Court and has given a reply in evasive in nature that he was even not ready and willing to produce the documents or the documentary evidence before the Court. 9. In view of the above facts and circumstances of the case, I am of the opinion that the trial Court has not committed any error while appreciating the evidence on record and has rightly passed the impugned judgment and order of acquittal in favour of the respondent accused. 10. 9. In view of the above facts and circumstances of the case, I am of the opinion that the trial Court has not committed any error while appreciating the evidence on record and has rightly passed the impugned judgment and order of acquittal in favour of the respondent accused. 10. It is also now well settled that while exercising powers under Section 378 of Cr.P.C. if the trial/Special Court while passing the order has committed any illegality or any perversity or has exceeded the jurisdiction, unless and until such facts come on record, the Court is very slow while dealing with an acquittal appeal. The Hon’ble Apex Court has in a series of judgments enunciated the principles while exercising jurisdiction under Section 378 against acquittal, the power of the Appellate Court is inasmuch as re-appreciate the evidence, view or re-consider the evidence and if the Court finds that there is any illegality or any irregularity in the judgment then in that case only, the Court has power to entertain the appeal and interfere with the order of acquittal. The scope and principles are enunciated by the Hon’ble Apex Court in case of Chandrappa and Others Vs. State of Karnataka, (2007) 4 SCC 415 , more particularly paragraphs 42 and 43, which was subsequently reaffirmed by the Hon’ble Apex Court Rajesh Prasad Vs. State of Bihar and Another, (2022) 3 SCC 471 , wherein, the Hon’ble Apex Court has enunciated the general principles in case of acquittal, more particularly in paragraph 26 the general principles are set out by the Hon’ble Apex Court based upon various decisions of the Hon’ble Apex Court. Then in case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka, AIR 2024 SC 2252 : (2024) 8 SCC 149 , the Hon'ble Apex Court has dealt with the similar issue, more particularly, in paragraph Nos. 37 to 40. Hence, I am in complete agreement with the findings recorded by the trial Court. 11. It is also worthwhile to refer to the recent decision of the Hon’ble Supreme Court in the case of Ramesh vs. State of Karnataka, (2024) 9 SCC 169 , wherein the Hon’ble Supreme Court has held and observed in Paras-20 and 21 as under: “20. Hence, I am in complete agreement with the findings recorded by the trial Court. 11. It is also worthwhile to refer to the recent decision of the Hon’ble Supreme Court in the case of Ramesh vs. State of Karnataka, (2024) 9 SCC 169 , wherein the Hon’ble Supreme Court has held and observed in Paras-20 and 21 as under: “20. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa and Others vs. State of Karnataka, regarding the power of the appellate Court while dealing with an appeal against a judgment of acquittal. The principles read thus: “42............ (1) An appellate court has full power to review, re-appreciate 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 against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasize 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. 21. 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. 21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of this Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice. Viewed in this light, the brusque approach of the High Court in dealing with the appeal, resulting in the conviction of Appellant Nos. 1 and 2, reversing the cogent and well-considered judgment of acquittal by the Trial Court giving them the benefit of doubt, cannot be sustained.” 12. The Court has framed general guild lines and principles while exercising the power under Section 378 of the Cr.P.C. against the judgment and order of the acquittal and under the general guild lines issued by the Apex Court, this Court is of the opinion that present appeal does not deserve to be entertained and the same requires to be dismissed. 13. On perusal of the impugned judgment and order of the trial Court, it clearly transpires that the trial Court has taken into consideration all the facts while acquitting the accused. It also appears from the impugned judgment and order that the trial Court has appreciated the entire evidence in its true perspective spirit and has come to the right conclusion in acquitting the accused. 14. After considering the above referred judgments and the order passed by the trial Court, it appears that the trial Court has not committed any error in passing the impugned judgment and order. 14. After considering the above referred judgments and the order passed by the trial Court, it appears that the trial Court has not committed any error in passing the impugned judgment and order. No illegality or perversity found in the judgment and order of the trial Court, hence I am of the opinion that present Appeal requires to be dismissed. 15. For the foregoing reasons and in view of the aforesaid decisions of the Hon’ble Apex Court present Appeal is hereby dismissed. Record and proceedings be sent back to the concerned trial Court forthwith.