ORDER : 1. This application is filed seeking leave to prefer an appeal against the judgment and order passed by the learned 2nd Additional Chief Judicial Magistrate, Anand in Criminal Case No. 141 of 2020 dated 15.07.2023 whereby, the accused came to be acquitted for the offences punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I.Act”). 2. It is the case of the complainant that complainant is retired and doing the agriculture work and as the accused and the complainant were co-employees and were having good relations, the accused wanted to send his son for further studies to Australia, therefore, he sought for financial help from the respondent-accused. In turn, the respondent-accused lent Rs.32,50,000/- in parts, after selling the shop, from the funds of gratuity/PF and after borrowing amounts from the friend. The amount was lent for a period of two years and on completion of two years, demand of the aforesaid amount was made and the respondent-accused, for repayment of the aforesaid amount, has issued the cheque bearing no. 043804 for the amount of Rs.30,00,000/-. 2.1. On depositing the said cheque with the bank, it was returned, therefore, criminal case was filed before the learned Additional Chief Judicial Magistrate being Criminal Case No. 4428 of 2017 which was dismissed. Thereafter, the private complaint came to be filed before the learned Chief Judicial Magistrate Court being Criminal Inquiry No. 49 of 2018. 3. After dismissal of the case i.e Criminal Case No. 4428 of 2017, the respondent-accused had issued further cheque bearing no.043806 of Rs.30,00,000/- dated 05.11.2019. On depositing the said cheque with the bank it was returned with an endorsement of “payment stopped by drawer”. Therefore, after following due procedure under the law, private complaint came to be filed. 4. Process came to be issued under section 204 of the Code of Criminal Procedure, 1973 against the respondent- accused and his plea was recorded below Exh.10 wherein, the accused had pleaded innocent and claimed to be tried. 4.1. To prove the guilt of the accused, complainant has produced the documentary evidence in the nature of cheque, return memo, notice, RPAD slip etc. and has examined himself below Exh.5. On filing the closing pursis, further statement under section 313 came to be recorded wherein the accused had pleaded false implications and stated to produce the documentary evidence in his defence. 5. and has examined himself below Exh.5. On filing the closing pursis, further statement under section 313 came to be recorded wherein the accused had pleaded false implications and stated to produce the documentary evidence in his defence. 5. In order to prove his defence, accused himself was examined below Exh.28 and has produced the TT Invoice Copy given by the IndusInd Bank, Anand to the Bank of New Zealand showing that amount is transferred by the bank below Exh.31, passport copy of the son Exh.32, statement of account of the wife from 01.07.2014 to 31.08.2014 of Indian Bank, Anand. 6. That, after filing the closing pursis by the accused, learned trial court has considered the evidence placed on record as well as the arguments advanced by the learned advocates for the respective parties and acquitted the respondent-accused from the charges leveled against him which is the subject matter of challenge before this Court. 7. Heard learned advocate Mr.Hiren Somaiya for the applicant-complainant. Learned advocate Mr.Somaiya submits that initially, the criminal case came to be filed before the learned Chief Judicial Magistrate Court being Criminal Case No. 4428 of 2017 for the dishonouring of the cheque bearing no. 043804 for the amount of Rs.30,00,000/-. The aforesaid criminal case was disposed of and the accused was acquitted vide judgment and order dated 24.09.2018. Thereafter, again the complainant has issued the cheque to settle the dispute between parties for the same amount on 05.11.2019 bearing cheque no. 043806. On depositing the cheque, it was dishonuored with an endorsement of “payment stopped by drawer” and though the notice was issued but the respondent-accused neither replied to the notice nor complied with the notice. 7.1. Learned advocate Mr.Hiren Somaiya submits that the signature on the cheque was not disputed nor the issuance of the cheque was disputed, however, though presumption which is in favour of the complainant under section 118 and 139 of the NI Act is not rebutted, the learned trial court has acquitted the respondent-accused from the charges. 7.2. Learned advocate Mr.Somaiya submits that while acquitting the respondent-accused, no cogent reasons were assigned and therefore, leave which is prayed for is required to be granted and appeal is to be admitted. 8. 7.2. Learned advocate Mr.Somaiya submits that while acquitting the respondent-accused, no cogent reasons were assigned and therefore, leave which is prayed for is required to be granted and appeal is to be admitted. 8. Considering the submissions advanced by the learned advocate Mr.Somaiya for the applicant-complainant, it transpires that as per the case of the complainant, the complainant lent amount in cash of Rs.32,50,000/- after selling the shop, collecting the funds of gratuity/PF and on borrowing amount from friends and relatives. For the repayment of the amount, cheque bearing no. 043804 was issued which was dishonoured and in the criminal case which was filed being No. 4428 of 2017, the accused came to be acquitted and thereafter, one more cheque was issued by the respondent-accused to settle the dispute with the complainant. 9. Lengthy cross-examination was undertaken of the complainant wherein, the complainant admitted that he was serving as a peon in Charotar Bank and the accused was serving as an Officer in the same bank. His duty is to accompany with the accused in the bank. His salary in the year 1989 when he joined was Rs.150/- and in the year 2013, it was Rs.23,000/-. The bank went into liquidation in the year 2002 and all staff members were terminated from the service. However, the respondent- accused was still serving in the bank and getting four to five times more than the complainant. The accused is having property like house and other but in which year the son of the accused went to Australia was not in the knowledge of the complainant. The amount was lent to the accused without any written proof. In which year he sold the shop is not in the knowledge of the accused neither the sale consideration was received through cheque or cash was stated in the complaint. How much amount was received towards the gratuity is also not stated in the complaint and on which date cheque was given was also not recollected by the accused. 9.1. The suggestion with regard to the stealing of cheque was denied by him. It was admitted by the complainant that for the same transactions the criminal case no. 4428 of 2017 was filed which was dismissed on 24.09.2018. Again demand was made and cheque in the year 2019 was received by the complainant and on dishonouring of the cheque the impugned complaint is filed. 9.2. It was admitted by the complainant that for the same transactions the criminal case no. 4428 of 2017 was filed which was dismissed on 24.09.2018. Again demand was made and cheque in the year 2019 was received by the complainant and on dishonouring of the cheque the impugned complaint is filed. 9.2. In addition to the above cross-examination, the respondent-accused has examined himself below Exh.28 and stated on oath that the complainant received the retirement dues in the year 2002 and the cash amount as stated by the complainant was lent from the funds of the retirement dues appears to be improbable as from the year 2002 to 2017, it is impossible to keep this cash amount at house and that too with the knowledge that after 15 years the accused would be in need of money and which would be lent by the complainant. During the cross-examination of the accused, no discrepancies could be brought on record by the complainant. 10. It transpires from the records that case of the complainant that he sold the shop from the funds of the retirement dues which he received, had lent the amount as well as he borrowed the amount from friend and relatives. The accused who is an Officer serving in the bank and the complainant who is a peon having duty along with the accused lending this much amount i.e Rs.32,50,000/-, that too in cash, appears to be doubtful. For the same transaction the Criminal Case bearing No. 4428 of 2017 was dismissed on 24.09.2018 and again for the said amount another cheque was issued as per the say of the complainant is also highly improbable and indigestible. 11. No prudent man, after getting acquittal by the court of law, would issue another cheque for same transaction. It appears that complainant is misusing the cheque which was lying with him by way filing complaints one after another. 12. The respondent who is the Officer of bank has made stop payment of the aforesaid cheques also corroborates with the probable defence which was raised by accused. 13. It is submitted during the course of arguments that the judgment which was rendered by the criminal court in the Criminal Case No. 4428 of 2017 was unchallenged. 12. The respondent who is the Officer of bank has made stop payment of the aforesaid cheques also corroborates with the probable defence which was raised by accused. 13. It is submitted during the course of arguments that the judgment which was rendered by the criminal court in the Criminal Case No. 4428 of 2017 was unchallenged. If complainant was dissatisfied with the judgment then he could have preferred an appeal before the higher forum and thereafter, if any settlement arrives, one can understand but in absence of challenging the judgment and order of acquittal, issuance of another cheque, for the same transaction to settle the dispute itself suggests that complainant has created false case against respondent-accused. 14. During the cross-examination complainant himself admits that accused is having property and therefore, for lending the amount to other person by selling his own property, more particularly, when accused is also having handsome income having the property would also lead to the conclusion that it is nothing but a misuse of process of law at the hands of the complainant. 15. The object of bringing section 138 to 142 of the Act on statute appears to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instrument as well as to harness the violators of the transactions arising from mercantile loan and to ensure that necessary commitment go from their obligations and make them liable for criminal prosecution to achieve the aforesaid object. 16. In the instant case, it appears that complainant was filing cases, one after the other, before the court of law by misusing the cheque which was stolen from the custody of the respondent-accused who was Officer in the bank where complainant was serving as a peon. 17. The presumption which is provided under section 118 and 139 of the N.I.Act is rebuttable presumption which points out that party on whom lies the duty going forward with evidence, on fact presume and when that party has produced the evidence fairly and reasonably tending to show that real fact is not as presumed the purpose of presumption is over. 18. 18. In the case on hand, the accused has rebutted the presumption while cross-examining the complainant by creating the circumstances suggesting that he was financially capable and was not in need of money at any point of time and for that he produced the fixed deposit receipts which was in the name of wife of the accused as well as the purpose for which the amount as stated to have been lent i.e for education purpose the education loan was taken suggests that complainant had filed the false case by stealing the cheques which were lying with the accused and not only one but when the accused was acquitted from the charges another cheque which was with the complainant was again used and deposited with the bank. 19. Whether presumption is rebutted or not would depend on facts and circumstances of each case. The Hon’ble Supreme Court laid down in catena of decisions that standard of proof in discharging the burden in terms of section 118 and 139 of the N.I.Act being a preponderance of probability, the inference thereof can be drawn not only from the material brought on record but also from the reference to the circumstances upon which accused relied. The burden to rebut the presumption on the accused is not high as that of the prosecution where the accused is able to probabalise his defence, the very fact that complainant had not placed on record any material to speak of lending of Rs.32,50,000/- as hand loan to the accused is held sufficient to infer that accused is able to rebut the presumption available in favour of the complainant under section 118 and 139 of the Act. 20. For the foregoing reasons, this Court finds no infirmity, propriety and illegality in the impugned judgment and order of acquittal and therefore, this Court deems it fit to not to give the leave to prefer an appeal against the judgment and order of acquittal passed by the learned 2nd Additional Chief Judicial Magistrate, Anand in Criminal Case No. 141 of 2020 dated 15.07.2023. 21. Resultantly, this application seeking leave to prefer an appeal is dismissed. ORDER IN F/CRIMINAL APPEAL NO. 35654 of 2023 In view of the order passed in the application seeking leave to prefer an appeal, the registration of the appeal is also refused.