M K SHASHIDHARAN Vs. N B NAIR

JUDGEMENT

(1.) The appellant, original complainant in Criminal Case No. 943 of 1995 and respondent no.2 in Criminal Appeal No. 53 of 1998 has approached this Court under section 378 of Criminal Procedure Code for challenging the order dated 8/1/1999 passed by learned Addl. Sessions Judge, Vadodara passed in Criminal Appeal No. 53 of 1998 where under the first Appellate Court namely Sessions Court has reversed the conviction order dated 31/7/1998 passed by learned JMFC, Vadodara in Criminal Case No. 943 of 1995 and acquitted the accused by recording its finding that the complaint was filed without issuing notice upon the accused respondent no.1 herein.

(2.) The facts in brief leading to filing of this appeal deserves to be set out as under: It was the case of the complainant/ appellant herein before the learned JMFC, Vadodara that the complainant knew the accused and they were having financial relationship. On account of some settlement between the parties accused issued cheque of Rs.25,000/- dated 10/3/1994 and another cheque of Rs.10,000/- dated 12/3/1994 drawn upon Bank of Baroda, Fertilizernagar, District Vadodara and promised the complainant that the same would be honoured on its presentation. The complainant presented both the cheques on 16/4/1994 but the same were returned with the endorsement of "insufficiency of funds" on 19/4/1994. The complainant once again presented the cheque on 22/4/1994 and second time also cheques were returned for insufficiency of funds on 26/4/1994. The return memos and cheques were produced on record. The complainant issued letter dated 28/4/1994 and thereafter notice through his advocate on 5/5/1994. Despite that no money was paid against those cheques complaint was lodged on 23/5/1994. Verification came to be recorded on 25/5/1994 and process came to be issued for offence under section 138 of Negotiable Instruments Act. The Court of First Instance after recording evidence recorded conviction and sentence to the accused to undergo 3 months simple imprisonment and fine of Rs.40,000/-, in default to undergo further 15 days simple imprisonment and further directed that from the amount of fine Rs.30,000/- be paid to the complainant.

(3.) Being aggrieved and dissatisfied with the order of sentence and conviction, the accused preferred appeal being Criminal Appeal No. 53 of 1998 under section 374(3)(a) of Criminal Procedure Code which came to be allowed by the Sessions Judge, Vadodara vide its order in judgment dated 24/8/1998, which is impugned in this appeal under section 378 of Criminal Procedure Code.