AMIT CHANDBHAN SIGLA Vs. REHMAN MOHAMMAD ISHAHAK SHAIKH

JUDGEMENT

(1.) The appellant original complainant has preferred this appeal under Section 378 of Criminal Procedure Code, 1973 and challenged the judgment and order of acquittal passed by learned 7th Additional Senior Civil Judge and J.M.F.C., Bhavnagar on 21.8.2008 in Criminal Case No. 602/2007 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act. According to the complainant, he was the owner of Aditya Fiber Factory at Dholaka. It was agreed between him and the accused to demolish boundary wail, two gates and other things except the machineries lying at Aditya Fiber Factory for Rs. 10,21,000/. The accused gave Rs. 95,000/- in cash and cheque No. 260214 dated 15.9.2006 for Rs. 3,66,000/- drawn on Indusin Bank, Ahmedabad branch for the same and it was agreed that the remaining amount would be paid as and when the material is lifted. The said cheque returned dishonoured on 18.9.2006 on account of insufficient funds. The accused has informed about return of the cheque unpaid. Therefore, the accused informed him to present the cheque before 1st December, 2006 and assured that the cheque would be cleared and requested not to obstruct him from lifting the material. Therefore, he permitted the accused to lift the material. The cheque was again presented in the Bank on 29.11.2006 but it returned unpaid with the endorsement of insufficient funds and he came to know about the same through the Bank on 1.12.2006. Therefore, notice dated 11.12.2006 through advocate was sent to the accused, who received the same but did not reply nor paid the amount of unpaid cheque. The accused by filing civil suit tried to raise false defence as the cheque returned unpaid and the accused failed to make the payment of unpaid cheque. Therefore, complaint under section 138 of the Act was filed.

(2.) The Trial Court issued summons and the accused appeared and denied having committed the offence. Therefore, the prosecution adduced evidence. At the end of recording of evidence, the incrementing circumstances appearing in the evidence against the accused were explained to him. The accused, in his further statement recorded under Section 313 of the Criminal Procedure Code, 1973 stated that the deal was made for Rs. 8,21,000/- but it was increased to Rs. 10,21,000/. Thereafter, Rs. 25,000/- and Rs. 70,000/- in cash were given and only Rs. 1,50,000/- remains payable and is prepared to pay the same. The accused did not examine any witness in his defence but produce certain documents. However, these documents were not admitted in the evidence as the accused did not prove the documents. After hearing the learned Advocates for the parties, the Trial Court by impugned judgment acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.

(3.) I have heard learned Advocate Mr. Oza for the appellant, learned Advocate Mr. Raval for respondent accused and learned APP Ms. Shah for the State at length and in great detail. I have also perused the impugned judgment and record and proceedings of the Trial Court.