JUDGMENT : L. S. PIRZADA, J. 1. The present revision application preferred by the applicant – original complainant under Section 397 read with Section 401 of the Code of Criminal Procedure is directed against the judgment dated 15.12.2007 passed by the learned Additional Sessions Judge, 4 th Fast Tract Court, Modasa at Sabarkantha in Criminal Appeal No.12 of 2006, allowing the appeal of the present respondent no.1 – original accused, quashing and setting aside the judgment and order of conviction dated 18.03.2006 passed by the learned Judicial Magistrate First Class, Modasa, Camp at Bayad in Criminal Case No.725 of 2001, convicting the respondent no.1 - original accused under Section 138 of the Negotiable Instruments Act, 1881 (for short, the “Act”) and sentencing him to undergo 1 year’s rigorous imprisonment and to pay fine of Rs.5000/-, in default, to undergo further two months’ simple imprisonment. 2. The factual matrix of the present case are that the present applicant – original complainant has filed one complaint for the offence punishable under Section 138 of the Act against the present respondent no.1 – original accused before the learned Judicial Magistrate First Class, Bayad being Criminal Complaint No.725 of 2001 on 17.09.2001. It is the case of the original complainant before the learned trial Court that the original accused is doing a business at Kapadvanj in the name and style of “Bombay Novelty Store” and the complainant frequently visiting the shop of the accused for purchasing. Thereafter, their relation became friendly and subsequently, for the purpose of development of the business, the original accused on 20.04.2001, has demanded hand-loan of Rs.1 lac from the complainant and the complainant has told the accused that he will give the said amount on 26.04.2001 and the accused also assured the complainant that he will return the said amount within three months. 2.1. On 26.04.2001, the accused came to the village: Kavath of the original complainant at Taluka: Kapadvanj and the complainant has given the amount of Rs.1 lac to the accused and against that, the accused has given a cheque of Rs.1 lac drawn on Punjab National Bank, Kapadvanj Branch from his C.C. Account No.422 dated 26.07.2001 and also assured the complainant that upon presenting the cheque in the account, the same would be cleared and the complainant will get the amount of Rs.1 lac. 2.2. 2.2. Subsequently, as per the instructions of the accused, the said cheque was deposited by the complainant on 26.07.2001 in the Savings Account at Sabarkantha Jilla Madhyasth Sahkari Bank Limited, Demai Branch and the said cheque was not cleared and returned with an endorsement “Exceeds Arrangement” and the same was intimated to the complainant on 07.08.2001. Subsequently, the complainant has issued a notice through his advocate to the accused on 17.08.2001, which was sent through R.P.A.D. and U.P.C., which was duly served to the accused but, the accused has not paid the amount within 15 days and also not paid any heed to the notice and given a false and frivolous reply. Thereafter, the complaint came to be filed by the complainant under Section 138 of the Act on 17.09.2001 against the respondent no.1 - accused. 2.3. After filing of the complaint, the Court has issued process under Section 204 of the Code of Criminal Procedure and the same was duly served. The plea of the accused was recorded and the accused pleaded not guilty and stated to be tried and thereafter, the complainant has given his examination-in-chief vide exh.41 and also produced the evidence including original cheque and other documentary evidence. Thereafter, the complainant was thoroughly cross-examined by the accused side. One another witness of the complainant – Mr.Gajendrasen Madhusudan Rathod has been examined and thereafter, the complainant has closed his evidence and further statement of the accused under Section 313 of the Code of Criminal Procedure has been recorded and denied all the incriminating circumstances put to the accused and stated that a false complaint has been filed against him. 2.4. Thereafter, considering the documentary as well as the oral evidence, the learned trial Court, by judgment dated 18.03.2006, has convicted the original accused under Section 138 of the Act and after hearing the accused on the part of sentence, sentenced the accused to undergo 1 year’s rigorous imprisonment under Section 138 of the Act and ordered to pay the amount of fine of Rs.5000/-, in default, to undergo 2 months’ simple imprisonment and also directed to pay Rs.1 lac by way of compensation under Section 357(3) of the Code of Criminal Procedure to the complainant and in default to pay the amount of compensation, two months’ simple imprisonment was also awarded. 2.5. 2.5. The said judgment of conviction has been challenged by the original accused by preferring Criminal Appeal No.12 of 2006 before the learned Additional Sessions Judge, 4 th Fast Tract Court, Modasa, which came to be decided by the appellate Court on 15.12.2007 and the appeal of the appellant - original accused was allowed and the judgment of conviction passed by the learned trial Court was quashed and set aside. Being aggrieved and dissatisfied by the said judgment passed in the appeal, the present revision application has been preferred by the present applicant – original complainant. 3. Learned advocate Mr.M.J. Patel for the applicant – original complainant submitted that the judgment passed by the appellate Court is ex-facie illegal, against the settled principles of law and is required to be quashed and set aside and the judgment of conviction passed by the learned trial Court is required to be restored. It is submitted that the original accused has raised the defense in the trial that the cheque was not issued against the legally enforceable debt or liability and the name was written at the bottom of the drawer’s signature by pencil and the learned trial Court, after going through the evidence and documents, has not considered the same and convicted the accused but, the learned appellate Court has not properly appreciated the findings recorded by the learned trial Court and acquitted the accused person and appeal has been allowed. The said judgment itself is against the settled principles of law and is required to be quashed and set aside. It is submitted that considering this, the learned appellate Court has not properly appreciated the facts and committed an error in coming to the conclusion that the legally enforceable debt has not been proved by the complainant and, therefore, also, the judgment of the learned appellate Court is required to be quashed and set aside and judgment of conviction passed by the learned trial Court is required to be restored. 4. On the other hand, learned advocate Mr.I.M. Pandya appearing for the respondent no. 4. On the other hand, learned advocate Mr.I.M. Pandya appearing for the respondent no. 1 – original accused submitted that the judgment passed by the learned appellate Court is just and proper and the learned appellate Court has rightly come to the conclusion that the learned trial Court had committed an error while appreciating the oral evidence and rightly set aside the judgment of the learned trial Court by allowing the appeal of the present respondent no. 1 – original accused and acquitted him. It is submitted that, therefore, no illegality has been committed and hence, there is no merit in the present revision application and is required to be dismissed. 5. Learned A.P.P. Mr.H.K. Patel appearing for the respondent no.2 – State submitted that there is a dispute between the private parties and hence, necessary order may be passed. 6. Considered the rival submissions of the respective parties and perused the impugned judgments passed by both the Courts below. The original Record & Proceedings are not available before this Court. 7. It is required to be considered that the jurisdiction of the Court in a revision petition is limited by the statute itself. Prima facie, the Court has to look into the issue regarding the irregularity or illegality, if any, committed by the trial Court when passing the impugned judgment and whether the impugned judgment has ultimately resulted into miscarriage of justice or absolute justice to either of the litigant. So far as the first revision against the order of acquittal is concerned, this Court is empowered to re-appreciate the evidence to examine that whether appreciation of evidence by the Court below is proper or not. However, while reappreciating the evidence in case of acquittal, the decision of acquittal can be interfered only if the appreciation of evidence by the Court below is absolutely unjust and illegal without consideration of settled legal position and whether the view taken by the Court below can be possible or not, then two views are possible, whether the view favourable to the accused has been taken or not in that circumstances only, the Revisional Court can interfere. 8. 8. With the background of the above legal position, so far as the judgment of the Magistrate Court is concerned, it is required to be noted that the learned Magistrate Court has, in its judgment, considered the defense taken by the original accused before the trial Court when further statement under Section 313 of the accused was recorded, that the signature on the cheque does not belong to the accused but, the Magistrate Court has compared the signature of the accused on exhs.12, 14, 21, 32, 33 and 37 and subsequently, come to the conclusion that the same were identical and curves of the words found to be similar in general. So, the learned Magistrate Court has come to the conclusion that so far as presumption under Section 139 of the Act is concerned, there is no rebuttal on the part of the accused and hence, as the statutory presumption has not been rebutted only on this ground when the signature has been established, complaint has been filed within the time limit and hence, there is no conviction. 9. The said judgment of conviction has been assailed by the accused by preferring an appeal before the learned appellate Court. So far as the defense taken in the appeal regarding cheque, which has been produced, in body writing, the signature is found apparently from ink and something has also been written on the cheque with pencil but, this fact has not been properly appreciated by the learned trial Court. In this regard, now it is required to consider the findings recorded by the appellate Court in the appeal. The appellate Court in its judgment, more particularly, in paragraph no.12, has observed that the findings recorded as per the case of the complainant that he has given amount of Rs.1 lac to the accused for his development of his business. In his cross-examination, he admitted that on 26.04.2001, an amount of Rs.1 lac was given to the accused after selling two cows and withdrawing Rs.20,000/- from the bank. But, the learned appeal Court has recorded the finding that the amount of Rs.20,000/- has been withdrawn from the bank on that particular day i.e. 26.04.2001 and no documentary evidence has been proved. Further, in his examination-in- chief, the complainant stated that he was engaged in agriculture activity and is a resident of village:Kavath. But, the learned appeal Court has recorded the finding that the amount of Rs.20,000/- has been withdrawn from the bank on that particular day i.e. 26.04.2001 and no documentary evidence has been proved. Further, in his examination-in- chief, the complainant stated that he was engaged in agriculture activity and is a resident of village:Kavath. However, in his cross-examination, he admitted that he does not own any agricultural land at village:Kavath and that, he holds a degree of B.S.A.M. (Ayurvedic Vaidya) and for the last 15 to 17 years, he had been residing at village:Kavath and that, in his affidavit he had shown his occupation as agriculturist but, the complainant does not possess any agricultural land and by profession, he is an Ayurvedic doctor. The complainant also admitted in the cross-examination that there is a writing by pencil on the cheque and other writings were different. Further, in the main defence stated that looking to the cross- examination, when a question was put to the complainant as to whether he knew one Mr.Nandubhai @ Navneetbhai, he denied knowing him and whether he was present in the Court while cross-examination was going on, pursuant to that, pursis at exh.52 was given by the advocate for the accused and stated that Mr.Nandubhai @ Navneetbhai is present in the Court. Considering this, the learned appellate Court recorded the finding that, as per the case of the accused, that the blank cheque was given to one Mr.Nandubhai @ Navneetbhai by the accused and as he was present in the Court when the cross-examination of the original complainant was going on and the body writing and the signature were different and even something was written below the signature Harish M Shah @ Lalwani on the cheque by pencil and below the date 26.07.2001, ‘1/5/’ has been written with pencil. So considering this, the learned appellate Court has come to the conclusion that when the complainant has no capacity to lend the amount and writing on the cheque, signature and body writing were different and also, in the defense, the probable defence was put- forward by the accused that the said cheque was given to Mr.Nandubhai @ Navneetbhai, who was doing a business in the name of Gurukrupa Finance and the said cheque was given to him by way of security by the accused and this was misused by the present complainant and said Mr.Nandubhai was also present. Therefore, the learned appellate Court has recorded the finding that this aspect has not been properly appreciated by the learned Magistrate while convicting the accused. The finding recorded by the appellate Court is that the learned Magistrate Court has rightly come to the conclusion that no evidence has been produced regarding the amount of Rs.20,000/-, which has been withdrawn by the complainant from his bank account on 26.04.2001 and as per his deposition, the complainant has sold his two cows to get remaining amount of Rs.80,000/- and subsequently, given the amount to the accused but, it was coming on record that the original complainant does not possess any agricultural land in the village. On the contrary, by profession, he is an Ayurvedic Doctor. 10. So, considering this, the learned appellate Court has rightly come to the conclusion that the probable defence has been raised by the accused and thereafter, initial presumption has been rebutted by the accused and the capacity of the complainant to lend the amount to the accused has not been established by the complainant. Also, doubt has been created that the blank cheque has been given by the accused to another person i.e. Mr.Nandubhai @ Navneetbhai by way of security and he was present when the cross examination of the complainant was going on. 11. Looking to the facts and circumstances and evidence on record, as discussed hereinabove, more particularly, as discussed by the learned trial Judge in the appeal, in the criminal jurisdiction in the revision application against the order of the acquittal, this Court is not convinced to interfere with the decision of the acquittal merely because the complainant has preferred the present revision application, more particularly, in absence of cogent and reliable evidence on record against the original accused. 12. 12. In view of the discussion hereinabove, on facts, evidences and law points, I do not find any error of law, irregularity, illegality and perversity in appreciation of the evidence in decision taken by the learned Sessions Judge by setting aside the judgment of conviction passed by the learned trial Court. 13. In the result, there is no substance in the present revision application and is hereby dismissed. Rule is discharged. The impugned judgment dated 15.12.2007 passed by the learned Additional Sessions Judge, 4 th Fast Tract Court, Modasa at Sabarkantha in Criminal Appeal No.12 of 2006, allowing the appeal of the present respondent no.1 – original accused, quashing and setting aside the judgment and order of conviction dated 18.03.2006 passed by the learned Judicial Magistrate First Class, Modasa, Camp at Bayad in Criminal Case No.725 of 2001, is hereby confirmed.