JUDGMENT : 1. This appeal has been filed by the appellant – original complainant under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) against the judgment and the order dated 18.08.2005 in Criminal Case No.705 of 2000 passed by the learned Judicial Magistrate First Class, Balasinor (hereinafter referred to as ‘the learned Trial Court’), whereby, the learned Trial Court has acquitted the respondent No.1 – original accused from the offence punishable under Section 138 of the Negotiable Instrument Act (hereinafter referred to as ‘the Act’). The parties 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 relevant facts leading to filing of the present appeal are as under: 2.1. That the complainant had filed a complaint under Section 138 of the Negotiable Instrument Act against the accused as the accused had given cheque No.301223 drawn on the Bank of Baroda, Mangaldas Market, Mumbai Branch and the complainant had deposited the same in Balasinor Nagarik Sahakari Bank Ltd., Balasinor Branch on 17.07.2000. but, the said cheque was returned with endorsement “Funds Expected, please present again” with the Return Memo dated 25.07.2000. The complainant gave a statutory demand notice dated 26.07.2000 and the same was received by the accused on 05.08.2000 and even though, the accused received the said notice, he did not repay the amount, and hence, the complaint was filed before the learned Judicial Magistrate, First Class, Balasinor, District Kheda. 2.2. The accused was duly served with the summons and the accused appeared before the learned Trial Court and plea of the accused was recorded at Exh.11. 2.3 The complainant side has produced 1 witness and 7 documentary evidences in support of the case. Oral Evidence: Sr.No. Name Exh. 1. Jitendra Chimanlal Parikh 51 Documentary Evidence: Sr.No. Details Exh. 1 Power of Attorney 52 2 Cheque No.301223 53 3 Return memo. 54 4 Forwarding Letter dated 25.07.2000 issued by the Balasinor Nagarik Sahakari Bank. 55 5 Receipt of R.P.A.D. dated 26.07.2000. 56 6 Envelope with the notice returned unserved 57 7 Office copy of notice 58 2.3. 1. Jitendra Chimanlal Parikh 51 Documentary Evidence: Sr.No. Details Exh. 1 Power of Attorney 52 2 Cheque No.301223 53 3 Return memo. 54 4 Forwarding Letter dated 25.07.2000 issued by the Balasinor Nagarik Sahakari Bank. 55 5 Receipt of R.P.A.D. dated 26.07.2000. 56 6 Envelope with the notice returned unserved 57 7 Office copy of notice 58 2.3. After the closing pursis was submitted by the learned advocate for the complainant at Exh.59, the further statement of the accused under Section 313 of the Code was recorded, wherein, the accused denied all the evidence produced by the complainant and stated that the notice was to received by him. After hearing the arguments of the learned advocates of both the parties, the learned Trial Court has acquitted the accused by the impugned judgment and order of acquittal dated 18.08.2005. 3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the appellant – the original complainant, who is the Power of Attorney Holder of Radhika Jitendra Parikh, has filed the present appeal mainly stating that the learned Trial Court has erred in holding that power of attorney holder cannot file the complaint under Section 138 of the Act. The learned Trial Court has also erred in holding that the complaint is signed by Jitendra C. Parikh who is the husband of Radhika Jitendra Parikh and Power of Attorney Holder and the learned Trial Court has not considered the contentions written in the Power of Attorney. The Trial Court has erred in referring that the Power of Attorney is given by a married woman to her husband and the same is general Power of Attorney not Special Power of Attorney and the same has not been revoked. The leaned Trial Court has not considered the relevant documents including the cheque at Exh.53, Memo at Exh.54, Information Letter at Exh.55 and Office Copy of the Notice at Exh.58 and notice along with envelope at Exh.57. The learned Trial Court has erred in not considering the further statement of the accused, and hence, the impugned judgment and order deserves to be quashed and set aside. 4. Heard learned advocate Mr. Meena Vyas for the appellant, learned advocate Mr. Iqbal Malik of the respondent No.1 - original accused and learned APP Mr. Bhargav Pandya for the respondent No.2 – State. 4. Heard learned advocate Mr. Meena Vyas for the appellant, learned advocate Mr. Iqbal Malik of the respondent No.1 - original accused and learned APP Mr. Bhargav Pandya for the respondent No.2 – State. Perused the impugned judgment and the order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case. 5. Learned advocate Ms. Meena Vyas for the appellant – original complainant has submitted that the learned Trial Court has not appreciated the evidence produced by the complainant side in true perspective and has committed grave error in acquitting the accused, and therefore, the impugned judgment and the order of acquittal passed by the learned Trial Court is required to be quashed and set aside and has urged this Court to allow the appeal. 6. Learned APP Mr. Bhargav Pandya for the respondent – State has adopted the arguments of learned advocate Mr. Vyas and has submitted that the present appeal may be allowed. 7. Learned advocate Mr. Iqbal Malik for the respondent No.1 original accused has submitted that the learned Trial Court has appreciated all the evidence in true spirit and has not committed any error in acquitting the accused, and therefore, no interference of this Court is required in the impugned judgement and the order of acquittal passed by the learned Trial Court and has urged this Court to reject the appeal. 8. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in the case of Mallappa & Ors. Vs. State of Karnataka passed in Criminal Appeal No.1162 of 2011 on 12.02.2024, wherein, the Apex Court has observed in Para Nos. 24 to 26, as under: “24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal. 25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to re-appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity. 26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The ‘two-views theory’ has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. In Selvaraj v. State of Karnataka, “13. Considering the reasons given by the trial court and on appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [ (2002) 9 SCC 639 ] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus: “9. …We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.”” (emphasis supplied) In Sanjeev v. State of H.P., the Hon’ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus: “7. It is well settled that: 7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka, Anwar Ali v. State of H.P.) 7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.) 7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala).” 9. In Para – 36, the Apex Court, in the case of Mallappa (Supra), has observed as under: “36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as: (i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive – inclusive of all evidence, oral or documentary; (ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge; (iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed; (iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal; (v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts; (vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court. [ 9. [ 9. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is presumption of innocence in favour of the accused and it has finally culminated when a case ends in an acquittal. That the learned Trial Court has appreciated all the evidence and when the learned Trial Court has come to a conclusion that the prosecution has not proved the case beyond reasonable doubts, the presumption of innocence in favour of the accused gets strengthened. That there is no inhibition to re appreciate the evidence by the Appellate Court but if after re appreciation, the view taken by the learned Trial Court was a possible view, there is no reason for the Appellate Court to interfere in the same. 10. On minute perusal of the evidence produced by the complainant on record, as per the case of the complainant, the endorsement of “funds expected please present again” and the statutory demand notice dated 26.07.2000 was sent to the accused by R.P.A.D. and the accused received the notice on 05.08.2000 but as per the evidence produced on record, the notice has returned unserved and there is no evidence that the statutory demand notice has been duly served to the accused. In the cross-examination, the complainant has admitted that “Shri Corporation” the firm of the accused was sent a notice vide receipt No.290 and the notice was returned with endorsement of “re-direct” and no new address was given and the notice was not served. That beside this, the notice was not served by any other method. Moreover, the complainant has also, during the cross-examination, admitted that he had not given the amount to the accused as stated in the complaint. 10.1. The learned Trial Court has, in the impugned judgment and order of acquittal, discussed all the evidence and has observed that on appreciation of the evidence produced by the complainant, the complainant has stated that he has given the statutory demand notice on the residential address as well as business address of the accused but, no evidence to this effect has been produced on record. The document produced at Exh.56, which is Postal Acknowledgment No.289 and the document produced at Exh,57, which is the notice sent to the residential address of the accused has returned unserved and the same is admitted by the complainant during the cross-examination at Exh.51. The document produced at Exh.56, which is Postal Acknowledgment No.289 and the document produced at Exh,57, which is the notice sent to the residential address of the accused has returned unserved and the same is admitted by the complainant during the cross-examination at Exh.51. The complainant has not produced any evidence that the notice was served on the business address of the accused and the complainant has not examined any witness from the postal department to show that the statutory demand notice was duly served and as the service of notice was not proved by the complainant, the learned Trial Court has passed the impugned judgment and order of acquittal. 11. On minute re-appreciation of the entire evidence of the prosecution and the impugned judgment and order, it appears that the learned Trial Court has thoroughly appreciated all the evidence on record and has given due consideration to all the material pieces of evidence. The learned Trial Court has discussed all the oral as well as documentary evidences and if the evidence produced by the prosecution is examined in light of the law laid down by the Constitution Bench in the case of Mallappa (supra), it appears that the learned Trial Court has arrived at findings which are legal and proper and there are no errors of law or facts. Moreover, the view taken by the learned Trial Court in acquitting the accused is fairly possible and there is no illegality and perversity in the impugned judgment and order of acquittal. 12. In view of the settled position of law in the decisions of Mallappa (Supra), the learned trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. 13. The impugned judgment and order of acquittal dated 18.08.2005 in Criminal Case No.705 of 2000 passed by the learned Judicial Magistrate First Class, Balasinor, is hereby confirmed. 14. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.