(1.) BY way of present appeal filed under Section 378 of the Code of Criminal Procedure, 1973, the appellant has challenged the Judgment and Order of acquittal dated 29th July 2000 passed by the learned 6th Joint Civil Judge (S.D.) and Judicial Magistrate First Class, Ahmedabad (Rural), in Criminal Case No.507 of 1998 for the offences punishable under Section 138 of the Negotiable Instruments Act, whereby the learned Magistrate has acquitted the respondent No.2-accused of the charges levelled against him by giving benefit of doubt.
(2.) THE short facts of the prosecution case is that the the appellant herein and the respondent No.2-accused knew each other. It is also the case of the complainant that the respondent No.2-original accused told the appellant herein that he has suffered financial loss and requested the appellant to help him. It is further the case of the appellant that on the promise and faith given by the respondent No.2-accused, on 26th November 1997, the appellant had given Rs.7,30,000/- (Rupees Seven Lacs Thirty Thousand Only) in cash. It is also the case of the appellant-complainant that a Compromise Deed to the said effect was also executed before Notary Public between the present appellant-original complainant and the respondent No.2-original accused. Pursuant to the said Compromise Deed, the respondent No.2-accused had given one cheque of Rs.3,30,000/- bearing No.008252 dated 01st February 1998 drawn on Nutan Nagrik Sahakari Bank Limited, Vijas Cross Roads Branch, to the present appellant. When the said cheque was deposited by the present appellant with his Bank, the said cheque was dishonoured and returned on 06th February 1998 with endorsement ?Funds Insufficient?. It is also the case of the appellant that when he informed the respondent No.2-accused about dishonour of cheque, the respondent No.2-accused had not given proper answer. It is further the case of the appellant that therefore, the appellant issued statutory notice dated 11th February 1998 under Section 138 of the Negotiable Instruments Act to the respondent No.2-accused through his advocate. THE said notice was sent through Registered Post A.D. as well as through UPC. THE said notice was duly served upon the respondent No.2-accused on 17th February 1998, but the respondent No.2-accused has neither replied the said notice nor the respondent No.2-accused has given the cheque amount to the appellant. Thus, the respondent No.2-accused has committed offence under Section 138 of the N.I. Act. THErefore, criminal complaint was filed against the respondent No.2-accused in the Court of learned 6th Joint Civil Judge (S.D.) and Judicial Magistrate First Class, Ahmedabad (Rural) under Section 138 of the Negotiable Instruments Act.
(3.) I have heard Mr.M.M. Tirmizi, learned counsel appearing on behalf of the appellant and Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent No.1-State. I have also gone through the papers produced before me and the Judgment and Order passed by the learned Magistrate.