KISHORBHAI BHUDABHAI CHAVDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant, original complainant, has filed this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgement and order of acquittal passed by learned Judicial Magistrate, First Class, Dwarka, on 28.4.2009 in Criminal Case No. 193 of 2003 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 ("the Act" for short).

(2.) According to the complainant, the accused borrowed Rs.20,000/- and gave cheque No. 219031 dated 28.12.2002 for Rs.20,000/- drawn on Bank of Baroda, Mithapur Branch. On presentation of the cheque in the Bank, it returned unpaid with the endorsement "fund insufficient". Therefore, notice was served to the accused which was received by him but the accused gave evasive reply and did not pay the amount of unpaid cheque. Therefore, complaint under Section 138 of the Act was filed.

(3.) The trial Court issued summons and the accused appeared and denied having committed the offence and therefore the prosecution adduced evidence. On completion of recording of the evidence, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused in his further statement explained the incriminating circumstances and stated that he had lost the cheque in question and therefore the Bank was also informed about the same that the complainant has misused the lost cheque.