BHUMESH KUMAR Vs. RANVIR NANDA

JUDGEMENT

(1.) This appeal, preferred by the appellant u/s 378(4) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C), is directed against the judgment and order dated 4.2.1994 passed by Chief Judicial Magistrate, Nainital in Criminal Case No. 1605/1990, Bhumesh Kumar v. Ranvir Nanda, whereby the learned Chief Judicial Magistrate acquit-ted the respondent Ranvir Nanda of the charge under Section 138 of The Negotiable Instruments Act, 1881 (hereinafter to be referred as the Act).

(2.) Brief facts of the case are that complainant Bhumesh Kumar (the ap-pellant herein) filed a complainant before Chief Judicial Magistrate, Haldwani against the respondent Ranvir Nanda with the averments that the complain-ant was carrying on his business of stone, sand, concrete, etc. under the name and style Himalaya Stone Industries, Moti Nagar, Haldwani, District Nainital and the respondent, who was the Chairman of Classic Construction Private Ltd., used to purchase above material from him. On the assurance of the re-spondent and in good faith, the complainant supplied the material of Rs.3,21,703/- to the respondent up to 17.5.1990 on credit basis through trans-port. It was alleged that Rs.2,56,743/- of the complainant was due on the re-spondent. After asking for the money many times, the respondent issued a cheque no.059108 dated 13.6.1990 payable at State Bank of India, Muradabad Division amounting Rs.1,00,000/- to the appellant on 1.6.1990. But the same cheque was dishonoured by the Bank due to insufficient funds. When said fact was brought in the knowledge of the respondent, he tendered his apology for it and assured to send the amount of cheque to the complainant on the same day. But the respondent did not sent the amount of cheque and send a tel-egram to the complainant informing that the payment is delayed and he would send the payment by the end of week. But even after expiry of the stipulated one week, the respondent did not remit any amount to the complainant. There-after, the respondent issued another Cheque No.059109 dated 30.8.1990 pay-able at State Bank of India, Muradabad amounting Rs. 1,25,000/- in favour of the appellant and requested to present the said cheque in the bank on 3.9.1990. When the said cheque was presented by the appellant in the bank, it also got dishonoured due to insufficient funds. Thereafter, the appellant send a regis-tered notice dated 8.9.1990 through his counsel to the respondent. Even after service of notice upon the respondent, neither he paid the amount to the com-plainant within fifteen days nor he gave reply of the said notice to the appel-lant. Thus, this complaint was filed by the appellant against the respondent on 3.11.1990 before Chief Judicial Magistrate, Nainital, under Sections 420 of IPC and Sect. 138 of the Act. The complainant in support of his case examined himself u/s 200 Cr.P.C. and also got produced A.K. Saxena, Branch Manager, Union Bank of India, Haldwani u/s 202 Cr.P.C.

(3.) After perusal of the evidence recorded u/s 200 and 202 Cr.P.C, Chief Judicial Magistrate, Nainital summon the respondent u/Ss 420 IPC and Sect. 138 of the Act.