VINAYAK GOPAL RAIKER Vs. MUKUND P VERNEKAR

JUDGEMENT

(1.) This is an appeal filed by the complainant against the judgment and order of acquittal of the accused passed by the J.M.F.C(III Court), Belgaum, dated 06.05.2010 in C.C. No.907/2007, wherein the accused was acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act.

(2.) Brief facts of the complainant's case are that both the complainant and the accused are Goldsmiths by profession. During the month of October 2004 accused approached the complainant for purchase of gold in bullion form. As per the requirements of the accused the complainant sold 24 carats gold in bullion form weighing 1708.500 grams to the accused on 15.10.2004. The market value of the same gold was Rs.10,93,400/-. The said gold was sold by the complainant to the accused on credit basis. The accused agreed to pay the value of the said gold within the period of 24 months on or before 15.10.2006. On the same day the accused had issued three post dated cheques bearing No.047151, 047152, & 047153 for Rs.3,64,480/- each drawn on Daivaddnya Sahakari Bank Limited dated 15.10.2006. 17.10.2006 and 19.10.2006. It was further started that if the accused failed to make the payment on or before 15.10.2006, then the complainant shall have not to encash the above said cheques. After the expiry of the said dates the complainant presented the said cheques in Canara Bank Shahapur Branch Belgaum for encashment, but the same were returned for want of funds vide endorsement dated 25.10.2006. Therefore, the complainant got issued a legal notice to the accused on 15.11.2006 calling upon him to make payment of cheques amount within 15 day from the date of receipt of the said notice. Even though the accused received the said legal notice, he failed to comply with its demand. On the other hand he gave vague reply to the said legal notice. Therefore, the complainant filed private complaints against the accused for the offence punishable under Section 138 of the Negotiable Instrument Act.

(3.) The learned Magistrate took cognizance of the offence alleged in the private complaint. On the basis of the sworn statement etc. and issued process against the accused. Accused was secured before the Court and obtained bail. After hearing both the sides his plea was recorded. After the evidence the statement of the accused was recorded. After hearing the arguments, the impugned judgment came to be passed. The said judgment has been challenged by the appellant on the following grounds: