MONOLITH INVESTMENT CO LTD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant - original complainant has preferred this appeal under Section 378 of the Criminal Procedure Code, 1973 and challenged the judgment and order of acquittal dated 28.03.2011 passed by the learned 6th Additional Chief Judicial Magistrate, Ahmedabad (Rural) in Complaint Case No.350/2005 acquitting the respondents No.2 and 3 for the offence punishable under Section 138 of the Negotiable Instruments Act (for short "the Act").

(2.) According to the complainant, the Company is incorporated under the provisions of the Company Act conducting the business of investment. The accused approached the complainant for financial assistance by way of loan for their business. The complainant provided financial assistance to the accused. As per the books of accounts maintained by the complainant Rs.7,55,520.63 was due and payable by the accused. Despite repeated request, the accused did not care to clear the outstanding amount. Hence, the complainant served the notice dated 22.06.2005 and called upon the accused to make the payment of outstanding amount. Therefore, the accused No.2 in the capacity of the Director of accused No.1 and incharge of the liability issued account payee cheque No.568952 dated 12.09.2005 for Rs.7,55,520.63 drawn on Indian Overseas Bank, Chowringhee branch, Kolkata. The said cheque was presented in the bank, but it returned unpaid with endorsement "insufficient funds". The complainant was informed about the return of cheque unpaid by the Bank by cheque returned memo dated 24.09.2005. The complainant by way of demand notice dated 10.10.2005 called upon the accused to make the payment of the amount of unpaid cheque. The notice was sent by registered post A.D at the last known address supplied by the accused, but the accused neither paid the amount nor gave reply to the notice. Therefore, the complaint under Section 138 of the Act was filed in the Court of learned Chief Judicial Magistrate, Ahmedabad (Rural) and it was registered as Complaint Case No.350/2005.

(3.) The Trial Court issued summons. Pursuant to the summons, the accused appeared and denied having committed the offence. Therefore, the prosecution adduced evidence. At the end of recording of evidence, trial Court explained to the accused the incriminating circumstances appearing in the evidence against it. The accused explained the incriminating circumstances in his further statement recorded under Section 313 of the Criminal Procedure Code.