SANDEEP MEHTA,J. - (1.) By way of this application preferred under Section 378(iv) Cr.P.C., the applicant complainant seeks leave to file an appeal against the judgment dated 21.11.2016 passed by the learned Special Judge (SC/ST) Cases Court, Udaipur in Criminal Appeal No. 06/2014 (CISN 12/2015) whereby, the appellate Court accepted the appeal of the accused Vijay Kumar (respondent No. 2) and acquitted him from the charge under section 138 of the Negotiable Instruments Act while setting aside the judgment of conviction dated 8.1.2014 passed by the learned Special Judicial Magistrate, Negotiable Instruments Act Cases No. 1, Udaipur in Criminal Case No. 981/2010.
(2.) Facts in brief are that the applicant complainant finance company lodged a complaint in the Court of learned Special Judicial Magistrate, NI Act Cases No. 1, Udaipur against the respondent No. 2 with the allegation that he had been advanced loan for purchasing a vehicle. With the said loan amount, the respondent No. 2 purchased an Ashoka Leyland vehicle bearing registration no. RJ 27 G 9738. The accused handed over a cheque No. 102090 dated 23.9.2008 for a sum of Rs. 6,83,000/- to the applicant finance company for the full and final repayment of loan amount. The cheque upon being presented was dis-honored with the remark of funds being insufficient. Notice under section 138 of the N.I. Act was sent to the accused who refused to accept the same and failed to make payment of the cheque amount. Thereupon, the complaint came to be filed against him. The trial Court proceeded to convict the accused for offence under section 138 of the N.I. Act by judgment dated 8.1.2014 and sentenced him to one year's simple imprisonment and a fine of Rs. 8 lakhs, in default to further undergo six months' simple imprisonment. From the amount of fine, a sum of Rs. 6,90,000/- was directed to be paid to the complainant finance company. The accused preferred an appeal against the judgment of conviction which came to be allowed by the appellate Court vide judgment dated 21.11.2016 as mentioned above and he was acquitted of the charge. Thereupon, the complainant finance company has approached this Court by way of instant application for grant of leave to appeal.
(3.) Shri Jodha learned counsel for the appellant vehemently urged that the appellate Court committed grave error on facts as well as law in acquitting the accused respondent of the charge. The judgment under challenge is perse illegal and perverse and as such, it is a fit case for grant of leave to file an appeal there against. He urged that the appellate Court proceeded on the premise that burden to prove existence of the legally enforceable debt was upon the complainant finance company whereas the statutory presumption operates in favour of the holder of the cheque in due course. As the finance company was holding the cheque issued by the accused in due course, no sooner the same was dishonoured, the accused was under the burden to disprove that the cheque was not advanced against a legally enforceable debt and not the other way round. He relied upon the judgment rendered by the Hon'ble Supreme Court in the case of B.M. Basavaraj. v. Srinivas S. Datta reported in 2016 SC Candid 427 and urged that the judgment of the Appellate Court is conceptually and legally unsustainable and thus, leave deserves to be granted for filing an appeal there against.;