USMANGANI YUSUFBHAI RANGPARIYA Vs. KISHORE B PAWAR

JUDGEMENT

(1.) THE appellant - original complainant has filed this appeal under Section 378(4) of the Criminal Procedure Code and challenged the impugned judgement and order of acquittal passed by learned Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Vadodara, on 14.5.2010 in Criminal Case No. 14285 of 2007 acquitting the respondent - accused for the offence under Section 138 of the Negotiable Instruments Act ("the Act" for short).

(2.) ACCORDING to the appellant, respondent was his friend as both of them were serving in Indian Penal Code. On account of friendship, the respondent used to obtain hand loan from time to time from him and used to return the amount so obtained. The respondent was in need of finance and therefor contacted him on 18.10.2006 and demanded L 2,55,000/ - as hand loan. He, with a view to help the respondent, gave L 2,55,000/ - in cash on 18.10.2006 to the respondent who received the amount and gave assurance that he would repay the amount within six to seven months. The respondent gave cheque No. 023921 drawn on Panchmahal Vadodara Gramin Bank dated 8.5.2007 for L 2,55,000/ - and assured that the cheque would be cleared. The cheque was presented to the Bank on 11.6.2007 but the same returned with endorsement "account closed" on 12.6.2007. Therefore, he gave notice on 21.6.2007 to the respondent. The notice was sent by registered post Acknowledgement Due (RPAD) and under postal certificate. The notice sent by RPAD was returned with endorsement "refused". However, the notice sent by under postal certificate has been received by the respondent but neither reply is filed nor amount claimed in the notice has been paid. Therefore, complaint under Section 138 of the Act was filed in the Court of learned Chief Judicial Magistrate, First Class, Vadodara and it was registered as criminal case No. 14285 of 2007.

(3.) PURSUANT to the service of summons, the respondent appeared in the Court and denied having committed the offence and claimed to be tried and therefore the complainant adduced evidence. On completion of recording of evidence, incriminating circumstances appearing in the evidence were explained to him. The respondent in his further statement recorded under Section 313 of the Criminal Procedure Code, 1973, stated that no amount has been paid to him and payment of L 2,55,000/ - is fabricated. He has further explained that his cheque book and passbook remained with the complainant who had helped him in opening account in the Bank and had kept his signed cheque book and passbook. The accused also examined a witness in support of his defence.