ORDER : 1. This matter is a glaring example of misusing of the powers by the Police Officer who is doing the business of money lending. 2. The present application is filed seeking leave to prefer an appeal against the judgment and order dated 09.08.2023 passed by the learned 7th Additional Judicial Magistrate First Class, Mahesana in Criminal Case No. 3066 of 2020 acquitting the respondent-accused for the charges punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I.Act”). 3. It is the case of the complainant namely Amarben that complainant lent the amount of Rs.2,50,000/- for education of children and treatment of accused’s father’s cancer ailment in several parts starting from 15.08.2019 to 22.10.2019 to the accused. For the repayment of the aforesaid hand loan the cheque bearing no. 000002 dated 26.02.2020 of Rs.2,50,000/- was issued in favour of the complainant and on depositing the same on 03.03.2020, it was returned with an endorsement of “funds insufficient” 04.03.2020. With above contention, private complaint came to be filed before competent court. 4. On being summoned, the accused appeared and his plea was recorded wherein, he pleaded not guilty and claimed to be tried. 4.1. Complainant in order to prove the guilt of the accused has examined four witnesses namely (1) Amarben Jethabhai Parmar, (2) Diptiben Jethabhai Parmar (Power of Attorney holder of complainant), (3) Vanjha Urviben Dilipbhai - Senior Clerk, Gujarat State Commission for Women and (4) Ismail Daoodbhai Mansuri - Police Sub- Inspector, Gomtipur Police Station, Ahmedabad. The documentary evidence in the nature of cheque, return memo, FIR being No. 11191018200232, Power of Attorney given by Amarben- complainant to Diptiben, complaint given by Diptiben to Gujarat Women Commission below Exh.55, quashing petition being Criminal Miscellaneous Application No. 10382 of 2020 was produced in addition to the oral evidence. 4.2. On filing the closing pursis, statement recorded under section 313 of the Code of Criminal Procedure, 1973 wherein, the accused pleaded that the amount which was borrowed was already paid to the complainant and receipt of the aforesaid amount was admitted by the complainant in the statement recorded before the police pursuant to the police complaint given by the present accused wherein, it was stated that disputed cheques were at the house of her mother which would be returned and the same cheque would not be utilized. 4.3. 4.3. Thereafter, learned trial court, after hearing the arguments and considering the evidence, has come to the conclusion that complainant fails to establish the legally enforceable debt against the respondent-accused and respondent-accused was acquitted from the charges leveled against him which is subject matter of challenge before this Court. 5. Heard learned advocate Mr.Rajesh Barot on behalf of learned advocate Mr.Nirav Thakkar for the applicant- original complainant. 5.1. Learned advocate Mr.Rajesh Barot submits that learned trial court has committed grave error in acquitting the respondent-accused in absence of the rebuttal of presumption which is in favour of the complainant under section 118 and 139 of the N.I.Act. 5.2. Learned advocate Mr.Rajesh Barot submits that respondent-accused had admitted the issuance of the cheque, borrowing of the amount and had not placed any evidence with regard to the repayment of the loan amount to the complainant i.e Amarben and statement which was recorded of the daughter namely Diptiben would not be binding to the complainant as Amarben did not receive the amount which was lent to the accused. 5.3. Learned advocate Mr.Rajesh Barot submits that it is true that after chief examination was over of the complainant, Amarben did not come for the cross- examination and thereafter, the evidence of Diptiben who is the Power of Attorney Holder of Amarben was recorded but that Power of Attorney was not available at the time when the statement was recorded in police complaint and in absence of the Power of Attorney, admission on the part of Diptiben which was before police is not admissible evidence, more particularly, when allegations of the threats were made by Diptiben to various authority. However, learned trial court relying on admission of Diptiben in the statement recorded before police officer has acquitted the respondent- accused from the charges and therefore, learned advocate prays to grant leave as prayed for. 5.4. Learned advocate Mr.Rajesh Barot submits that though the F.I.R is filed under section 406, 294(b), 506(1), 114 of Indian Penal Code, 1860 and section 4, 42 and 40 of Gujarat Money Lender’s Act against Amarben, Diptiben and unknown person but as there were no evidence this Court has stayed the proceedings in the quashing petition being Criminal Miscellaneous Application No. 10382 of 2020. However, learned trial court has disbelieved the case of the complainant on the ground that Power of Attorney holder namely Diptiben is the police constable and doing the business of money lending, as the said conclusion was arrived without any evidence, the impugned judgment and order of acquittal deserves to be interfered with. 5.5. Learned advocate Mr.Rajesh Barot submits that without any cogent reason, the judgment and order of acquittal was passed, therefore, same is required to be interfered with and leave as prayed for is required to be granted. 6. Having heard the learned advocate Mr.Rajesh Barot for the applicant-original complainant as well as thoroughly examining the record and proceedings, it emerges from the record that complainant has filed the complaint with allegations that the amount of Rs. 2,50,000/- was lent and for repayment the cheque bearing no. 000002 which was issued was dishonoured. 6.1. The complainant namely Amarben has not come in the box for cross-examination as after examination-in-chief was over on account of ill health, she did not offer herself for cross-examination by the accused. 7. At this stage this Court has considered the decision rendered by the Hon’ble Apex Court in the case of Gopal Saran Vs Satyanarayan reported in AIR 9 SC 1141, wherein the Hon’ble Apex Court held that: “On the basis of the aforesaid, it was contended that it was the definite case of the defendant in Examination-in- chief, that the board belonged to him and that the defendant was carrying on his own business and that there was no dispute as to the same by the plaintiff. It may be mentioned that the plaintiff had not subjected himself to cross-examination in spite of the order of the Court after the remand, therefore, it would not be safe to rely on the examination- in-chief recorded which was not subjected to cross-examination before the remand was made. If that is so, it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint. This position appears established from the facts on record. When the plaintiff appeared for evidence in rebuttal he could have been cross- examined on these points. It was submitted that in rebuttal the plaintiff had stated only with regard to the default in payment of rent but the Plaintiff had not chosen to support his plaint case, before the defendant went to the witness box. When the plaintiff appeared for evidence in rebuttal he could have been cross- examined on these points. It was submitted that in rebuttal the plaintiff had stated only with regard to the default in payment of rent but the Plaintiff had not chosen to support his plaint case, before the defendant went to the witness box. There was no question of cross-examining the plaintiff traveling beyond the evidence of the plaintiff given in examination-in-chief and thereby giving an opportunity to make out a case in cross-examination. It, therefore, appears from the pleadings and the evidence that the respondent did not make out any case of the appellant parting with possession by putting up the hoarding. In examination in-chief also he did not make out such a case and on the contrary his case was that it was that it was the defendant- appellant who had put up the hoarding. The plaintiff did not allege that the defendant-appellant was not carrying on also advertising business. It was submitted on behalf of the appellant that having refused to submit to cross- examination the plaintiff has made the evidence in examination-in-chief non est. It was the case of the defendant that he was carrying on the business of advertisement by putting up the hoardings of different parties. The board was made by him, paintings and writings were also done by him and for putting the hoarding the charged from his customers. Therefore, it appears to us that there are no clear findings that anybody was given lease or anybody was given the right to put up the hoarding and there was parting of possession in favour of anyone else. It was, however, argued that even if the appellant had put the advertisement board hoarding he was earning a huge amount by the same and this was a factor which would indicate that there was parting of possession by him. It was, however, submitted on behalf of the appellant that when the shop had been let out to the defendant-appellant for carrying on business it was the fight of the defendant-appellant to carry on the business. It was legally permissible to use the said shop room and also use the roof thereof and earn as much as could be done and as such it is not parting with possession.” 8. It was legally permissible to use the said shop room and also use the roof thereof and earn as much as could be done and as such it is not parting with possession.” 8. In view of the above judgment, in absence of the cross- examination, the evidence of the complainant in the instant case which was submitted through the chief examination cannot be relied. 9. Thereafter, on the application of the complainant, the Power of Attorney holder namely Diptiben, who is the daughter, came for evidence and was examined below Exh.46. During her cross-examination, she admitted that the police complaint is filed, wherein he was released on bail. 9.1. It is further admitted in the cross-examination that at the time when the cheque was issued i.e 26.02.2020, there was lock down due to Covid-19 pandemic. Complaint was filed by the accused with regard to the disputed cheque before Gomtipur police station wherein, her statement was recorded but thereafter, she clarified that the Police Officer had recorded statement on their own. With regard to the threats, she made a complaint to the Women Rights Commission and the Officer from the Commission was examined below Exh.54. The said application was disposed of by the Police Officer after investigating. 9.2. Thereafter, one more witness was examined namely Ismailbhai below Exh.59 who was Police Officer serving at Gomtipur Police Station and during the cross- examination of this witness, it is admitted that the statement which was recorded of Diptiben in the proceedings of the complaint was read over, wherein, she stated that she received the money as well as cheque and promissory note would be returned and at present the same is lying with the mother. To the evidence of this witness, the report which is submitted below Exh.60 from where it transpires that on 01.03.2020 statement of Diptiben was recorded wherein, it transpires that dispute occurred between Narendrabhai Chavda and Diptiben as Diptiben went to the house along with one unknown person to demand the money which was lent by Diptiben at that time, due to aggressive altercation a call was made to the Control Room wherein, the statement of both the persons namely Narendrabhai and Diptiben was recorded that settlement is arrived between the parties as the cheque amount is received and the cheque which was issued would be returned along with the promissory note. 9.3. 9.3. After recording the statement on 01.03.2020, Amarben and Diptiben deposited the cheque on 04.03.2020 and therefore, FIR came to be filed before Gomtipur Police Station. This report was proved through the evidence of the complainant witness. The FIR which is registered against the complainant as well as Diptiben wherein, also the allegations are made that at the time of borrowing the amount, the cheque was taken and promissory note was given and for two months the interest was paid of Rs.17,500/- thereafter, he could not make the payment of the interest therefore, on 29.02.2020 Diptiben called Narendrabhai on his mobile asking him to pay interest as it was not paid since last three months and when it was conveyed that at present Narendrabhai is in financial difficulty, Diptiben had abused him and warned him that if the amount is not repaid then he would face dire consequences. 9.4. On the same day, at night around 8:00 pm, Diptiben came to the house along with one unknown person and again the money was demanded and thereafter, it was informed to the unknown person that “I will commit suicide at the house of Narendrabhai” and due to intervention of the neighbours, Diptiben and unknown person went away from the house. Thereafter, Narendrabhai had informed in the Police Control Room and on calling Diptiben as well as Narendrabhai it was admitted by Diptiben that amount of Rs.2,50,000/- was received and the cheque is in the name of Amarben which would not be used in future. The same entry was made in the Station Diary on 01.03.2020. 9.5. Learned trial court has believed the defence of the accused that as Diptiben admitted the amount debt have been paid, the respondent-accused had successfully rebutted the presumption which is in favour of the complainant. Therefore, learned trial court has acquitted the respondent-accused by giving detailed reasons and therefore, this Court did not find any infirmity, illegality or perversity in the impugned judgment and order of acquittal. 10. Therefore, learned trial court has acquitted the respondent-accused by giving detailed reasons and therefore, this Court did not find any infirmity, illegality or perversity in the impugned judgment and order of acquittal. 10. Diptiben who is the Power of Attorney holder of complainant is serving in Police Department has lent the amount to respondent-accused and from the FIR it transpires that for taking back the amount as well as interest, she went to the house of complainant and created ruckus and for that respondent-accused i.e Narendrabhai had informed in the Control Room wherein, she admitted in her statement that amount is received by her therefore, cheque was deposited in the name of mother namely Amarben wherein, again Diptiben, who is a Police Constable, gave evidence as a Power of Attorney holder. 11. It is true that the investigation is stayed in the quashing petition filed by the complainant being Criminal Miscellaneous Application No. 10382 of 2020, however, from the record it prima facie appears that Dipitben, who is the Power of Attorney holder of complainant namely Amarben, serving as a Police Constable is involved in the offence of money lending and on non- payment of interest amount, quarrel had taken place and thereafter, the FIR is lodged. 12. This Court has considered the decision rendered by the Hon’ble Apex Court in the case of Basalingappa V/s. Mudibasappa reported in (2019) 5 SCC 418 where summarize the principle enumerated in paragraph No.25, which reads as under: “25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner: 25.1. Once the execution of cheque is admitted Section 139 the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the 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. 25.4. 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 persuasive burden.” 25.5. It is not necessary for the accused to come in the witness box to support his defence." 13. In view of the above, this Court holds that no leave is required to be granted to file an appeal before this Court challenging the judgment and order dated 09.08.2023 passed by the learned 7th Additional Judicial Magistrate First Class, Mahesana in Criminal Case No. 3066 of 2020 and this application deserves to be dismissed. 14. Hence, this application is dismissed. 15. The Registry is directed to place this order before the Co-ordinate Bench wherein, the quashing petition being Criminal Miscellaneous Application No. 10382 of 2020 is pending for consideration so that, the Co-ordinate Bench can pass appropriate order. ORDER IN F/CRIMINAL APPEAL NO. 35809 of 2023: In view of the order passed in application seeking leave to prefer an appeal, registration of the appeal is also declined.