BIPINKUMAR MANGALDAS PATEL Vs. DINESHCHANDRA PRABHASHANKAR JANI

JUDGEMENT

(1.) The appellant has preferred this Appeal under Section 378 of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 29th April 2004 passed by the learned 2nd Joint Judicial Magistrate First Class, Mehsana in Criminal Case No.5818 of 1999 for the offences under Section 138 of the Negotiable Instruments Act, whereby the learned Magistrate has acquitted the respondents-accused from the charges levelled against them.

(2.) The short facts of the prosecution case is that the respondents-accused have launched scheme of Sonalpark Flats in the partnership. It is the case of the prosecution that he had booked one flat in the scheme known as "Sonalpark" and paid Rs.51,000/-(Rupees Fifty One Thousand Only) in cash to the respondents-accused. The respondents-accused have cancelled the said scheme as it was failed. It is also the case of the prosecution that as the respondents-accused are responsible to refund the amount with interest received by them, respondent no.1-accused issued one cheque bearing No.124554 of Rs.63,000/- drawn on Deesa Nagrik Sahakari Bank Limited, Deesa and promised that the said cheque will be honoured. It is further the case of the prosecution that when the said cheque was was presented before the Gozariya Nagrik Sahakari Bank, the same was not cleared and was returned with endorsement "insufficient funds". This was orally intimated to the respondents-accused by the complainant. The said cheque was after a month once again represented before the Bank as it was promised by the respondents-accused that the same will be honoured, but to the shock and surprise of the complainant, the same was again returned uncleared with endorsement "insufficient funds". It is also the case of the prosecution that because of this, notice dated 01st November 1999 was issued to the respondents-accused. Though the said notice was served upon the respondents-accused, the respondents-accused had not replied the same. Therefore, complaint was filed against the respondents- accused in the Court of learned Chief Judicial Magistrate, Mehssana.

(3.) Thereafter the trial was conducted before the learned Magistrate. To prove the case of the prosecution, prosecution has produced oral as well as documentary evidence.