SURESHBHAI BHIMJIBHAI CHAUDHARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT appeal is preferred by the appellant - original complainant against the judgment and order passed by the learned Chief Judicial Magistrate, Himmatnagar dated 4.3.2011 in Criminal Case No.2034 of 2009, by which the learned Judge had acquitted the accused for offences punishable under Section 138 of the Negotiable Instruments Act,1881 (for short the Act).

(2.) IN brief, it is the case of present appellant original complainant that because of the good relations and friendship with the accused, present appellant borrowed Rs.4,50,000/- in cash from relatives to help the accused for the purpose of carrying out the business of construction. It is alleged that present appellant - complainant demanded the said amount from the accused and pursuant to such demand, accused had handed over a cheque bearing No.42049 dated 30.5.2009 of Mehsana Urban Co-operative Bank Ltd. Himmatnagar Branch. The said cheque was presented in the bank for clearance, which was returned with an endorsement of the bank account closed. 2.1 The appellant herein, thereafter, issued notice dated 11.6.2009 through RPAD as well as UPC, which came to be served to the respondent No.2 accused. But, as the accused has not deposited the amount as per demand made in the notice, the present appellant complainant lodged complaint under Section 138 of the Act before the learned Chief Judicial Magistrate, Himmatnagar. 2.2 The plea of the accused was recorded vide Exh.5. The accused had not pleaded guilty and the trial was commenced. 2.3 The appellant original complainant was examined at Exh.6. The appellant original complainant had produced the documentary evidence before the trial Court. The accused had not examined any witness. At the end of the trial, after hearing the arguments of learned advocates appearing on behalf of the respective parties, the trial Court has acquitted the accused. Hence, the present appeal.

(3.) THIS Court has gone through the judgment and order passed by the trial Court. As per the case of the complainant, he collected Rs.4,50,000/- from his relatives and friends and said amount was paid to the accused in cash. It is also not in dispute that bearer cheque was issued by the accused. THIS Court has also gone through record and found that as far as the cheque is concerned, same is of the year 1900. But it was issued on 30.5.2009 and this is a bearer cheaque. The complainant has also stated on oath before the trial Court that he did not present the cheque in original form but, presented the cheque after it was laminated. He had also admitted that this is the bearer cheque and not an account payee cheque. He had also admitted that he has not produced any evidence from where he collected Rs.4.50,000/-. He had also admitted that he did not obtain any kind of written documents from accused in reference to the payment of Rs.4,50,000/-. The trial Court has discussed the evidence in detail and rightly come to conclusion that ingredients of Section 138 of the Act are not attracted as this is a bearer cheque and complainant has failed to prove his case.