IKBAL HUSSAIN YUSUFBHAI MANSURI Vs. RAJUBHAI KANTIBHAI PARMAR

JUDGEMENT

(1.) BY this appeal, the appellant herein ? original complainant challenges the order dated 16.11.2009 passed by the learned Chief Judicial Magistrate, Godhra in Criminal Case No.28 of 2004.

(2.) THE appellant herein is original complainant and respondent no.1 is original accused. Original accused is doing business of selling auto rickshaw. THE appellant wanted to purchase auto rickshaw with the help of Bank. THErefore, he prepared loan papers for bank loan and presented in the bank. THE appellant had already deposited Rs.60,000/- to the respondent original accused and remaining amount of Rs.90,000/- was deposited by way of bank draft in favour of the respondent accused. Despite the payment, respondent accused had not given delivery of the auto rickshaw. THEreafter, appellant as well as bank authorities demanded money back from the respondent original accused. THErefore, respondent accused gave cheque of Rs.45,000/- dated 15.06.2003. When said cheque was presented by the appellant before the Bank, said cheque was dishonoured with endorsement 'account closed on 26.08.2003?. THEreafter, appellant gave demand notice to the respondent accused through his advocate on 12.12.2003 which was served on 13.12.2003. Inspite of receiving said notice, respondent accused did not pay the money, therefore, appellant filed Criminal Case No.28 of 2004 before the learned Chief Judicial Magistrate, Godhra against respondent accused for the offence under section 138 of the Negotiable Instrument Act.

(3.) IT is submitted by Ms.Kotecha, learned advocate for the appellant that as talks of settlement was going on between the original complainant and original accused, he could not remain present in the morning. IT is also submitted that original complainant went to bring original cheque. IT is submitted that after recess hours, original complainant remained present before the Court and submitted application as original accused was acquitted by the Court. Said application was rejected. She further submitted that order passed by the learned Trial Court is illegal and perverse and against principles of natural justice and is required to be quashed and set aside. She also invited attention of the Court to the original record of case.