Section 138 NI Act Appeal Format under Section 415(3) BNSS

IN THE COURT OF THE SESSIONS JUDGE / ADDITIONAL SESSIONS JUDGE AT __________

CRIMINAL APPEAL NO. ____ OF 20__

IN THE MATTER OF:

VERSUS

CRIMINAL APPEAL UNDER SECTION 415(3) OF THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 AGAINST THE JUDGMENT OF CONVICTION DATED ________ AND ORDER ON SENTENCE DATED ________ PASSED IN COMPLAINT CASE NO. ________ FOR THE OFFENCE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881

MOST RESPECTFULLY SHOWETH:

1. That the present appeal is directed against the judgment of conviction dated __________ and the order on sentence dated __________ passed by the Learned __________________ Magistrate, __________, in Complaint Case No. __________, whereby the appellant was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and was sentenced to __________________________.
2. That certified / authenticated copies of the impugned judgment and order on sentence are being filed with the present appeal as Annexure A (Colly.), subject to the filing rules applicable to the concerned court.
3. That the respondent/complainant instituted the complaint alleging dishonour of cheque bearing No. __________ dated __________ for Rs. __________ drawn on __________ Bank, __________ Branch.
4. That according to the complaint, the cheque was presented for encashment and was returned unpaid vide return memo dated __________ with the remark "________________".
5. That a statutory demand notice dated __________ was issued by the complainant alleging non-payment of the cheque amount and the complaint under Section 138 of the Negotiable Instruments Act was thereafter instituted.
6. That during trial, the complainant examined himself/herself as CW-1 and relied upon the cheque, return memo, demand notice, postal/electronic service records and such other documents as were exhibited before the trial court.
7. That the appellant contested the complaint and raised the defence that ________________________________________________. The defence of the appellant, including the material elicited in cross-examination and the defence evidence, was not properly appreciated in the impugned judgment.
8. That the Learned Trial Court, by the impugned judgment, convicted the appellant and thereafter passed the impugned order on sentence. The findings are contrary to the evidence, the applicable legal principles and the probabilities emerging from the record.
9. That the present appeal is within limitation. If any delay has occurred, an appropriate application for condonation of delay is being filed separately.

GROUNDS OF APPEAL

1. Because the impugned judgment is contrary to law and evidence. The Learned Trial Court failed to appreciate the evidence in its correct perspective and recorded findings that are unsupported by the material on record.
2. Because the legally enforceable debt or liability was not established in the manner required by law. The appellant's challenge to the alleged transaction, source of funds, surrounding circumstances and documentary record was not properly considered.
3. Because the statutory presumptions were treated as conclusive. The presumptions under Sections 118 and 139 of the Negotiable Instruments Act are rebuttable. The defence can rely upon the complainant's own evidence, cross-examination, documents and surrounding probabilities to raise a legally sufficient defence.
4. Because material contradictions and admissions were ignored. The trial court failed to give due weight to contradictions, omissions and admissions concerning the alleged transaction, issuance/delivery of cheque, consideration and other material facts.
5. Because the defence version was rejected on an unduly onerous standard. The appellant was not required to prove the defence in the same manner as the prosecution/complainant is required to establish the ingredients of the offence.
6. Because the finding regarding service and compliance with statutory requirements is erroneous, if applicable. The evidence concerning presentation, dishonour, demand notice, service/deemed service, limitation and institution of the complaint requires reconsideration on the facts of the case.
7. Because the sentence and monetary directions are excessive or disproportionate, if applicable. Without prejudice to the challenge to conviction, the order on sentence warrants interference having regard to the facts, circumstances, antecedents and proportionality.
8. Because the appellant craves leave to urge additional grounds. The appellant seeks permission to raise such further grounds as may be necessary at the time of hearing and as may be permitted by the appellate court.

PRAYER

In view of the facts and grounds stated above, it is most respectfully prayed that this Hon'ble Court may be pleased to:

1. admit the present criminal appeal and call for the trial court record;
2. set aside the judgment of conviction dated __________ and order on sentence dated __________ passed in Complaint Case No. __________ and acquit the appellant of the offence under Section 138 of the Negotiable Instruments Act, 1881;
3. pending disposal of the appeal, pass appropriate orders on the appellant's application for suspension of sentence and bail;
4. pass appropriate orders in relation to any direction under Section 148 of the Negotiable Instruments Act, 1881 in accordance with law and the facts of the case; and
5. pass such other or further order as this Hon'ble Court may deem fit and proper in the interests of justice.

APPELLANT

THROUGH COUNSEL

________________________
ADVOCATE

Place: __________
Date: __________

IN THE COURT OF THE SESSIONS JUDGE / ADDITIONAL SESSIONS JUDGE AT __________

IN CRIMINAL APPEAL NO. ____ OF 20__

APPLICATION UNDER SECTION 430 OF THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 FOR SUSPENSION OF SENTENCE AND RELEASE OF THE APPELLANT ON BAIL PENDING APPEAL

MOST RESPECTFULLY SHOWETH:

1. That the applicant/appellant has filed the accompanying appeal against the judgment of conviction dated __________ and order on sentence dated __________ passed by the Learned __________________ Magistrate in Complaint Case No. __________ under Section 138 of the Negotiable Instruments Act, 1881.
2. That the appeal raises substantial and arguable grounds on facts and law. The grounds stated in the memorandum of appeal may be read as part of this application and are not repeated for the sake of brevity.
3. That the applicant was on bail during trial / has complied with the conditions imposed by the trial court, as applicable, and there is no reasonable apprehension of absconding or misuse of liberty.
4. That the applicant undertakes to appear before this Hon'ble Court on every date as directed and to comply with all conditions that may be imposed.
5. That unless the sentence is suspended during pendency of the appeal, the applicant will suffer serious prejudice and the appeal may be rendered substantially ineffective, particularly having regard to the nature and duration of the sentence.
6. That this application is bona fide and is made in the interests of justice.

PRAYER

It is therefore most respectfully prayed that this Hon'ble Court may be pleased to suspend the execution of the sentence/order appealed against during pendency of the criminal appeal and release the appellant on bail / bond on such terms as this Hon'ble Court deems fit, and pass any other appropriate order in the interests of justice.

APPELLANT/APPLICANT

THROUGH COUNSEL

________________________
ADVOCATE

AFFIDAVIT

I, ______________________, aged about ____ years, S/o / D/o / W/o ______________________, resident of ______________________________, do hereby solemnly affirm and state as follows:

1. That I am the appellant/applicant in the accompanying appeal/application and am competent to swear this affidavit.
2. That the accompanying appeal/application has been prepared under my instructions. The contents thereof have been read over and explained to me and are true and correct to my knowledge and belief, based on the record of the case.

DEPONENT

VERIFICATION
Verified at __________ on this ____ day of __________, 20__, that the contents of the above affidavit are true and correct to my knowledge and belief and nothing material has been concealed therefrom.

DEPONENT