ANILBHAI CHIMANLAL VITHLANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant, original complainant, has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgement and order of the acquittal passed by learned 3rd Additional Civil Judge and Judicial Magistrate First Class, Surat, on 10.8.2009 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 was his friend and was connected with jewellery business. As the accused was in need of finance of Rs. 1 lakh for his business, the accused made request to advance the amount. Therefore, he advanced Rs. 25,000/- on 6.2.1999 and another Rs. 25,000/- on the same date in cash. The accused gave receipt for the amount received by him. Thereafter on 7.2.1999 another Rs. 25,000/- and further Rs. 25,000/- were obtained by the accused as hand loan and receipt was passed in that regard. Thereby, the accused obtained Rs. 1 lakh towards hand loan. The accused gave cheque No. 221541 dated 16.10.2002 for Rs. 50,000/- and cheque No. 221542 dated 17.10.2002 for Rs. 50,000/- against the amount obtained by him. Cheques were presented in the bank on 18.10.2002 but both the cheques returned unpaid on account of insufficient funds. Therefore, notice was served to the accused making demand of the unpaid cheques. The accused received the notice but did not pay the amount of unpaid cheques. Therefore, complaint under Section 138 of the Act was filed in the Court of learned Chief Judicial Magistrate at Surat and it was registered as Criminal Case No. 170 of 2002.

(3.) The trial Court issued summons and the accused appeared and denied having committed the offence. Therefore, prosecution adduced evidence. At the end of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to him. The accused explained the incriminating circumstances in his further statement recorded under Section 313 of the Code of Criminal Procedure, 1973. After hearing learned advocates for the parties, the trial Court by the impugned judgement acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.