DILIPBHAI CHIMANBHAI PATEL Vs. HAJI SHABBIRBHAI HASANBHAI VORA

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 acquittal passed by learned Additional Judicial Magistrate First Class, Padra, on 1.7.2010 in Criminal Case No. 1987 of 2004 acquitting the respondent accused for the offences under Section 138 of the Negotiable Instruments Act, 1881 ("the Act" for short).

(2.) According to the complainant, he is doing the business of building construction and accused is doing the business of sale and purchase of trucks. During the life time of his father, the accused obtained loan in his presence. On settlement of account, Rs. 10 lakh remained payable by the accused for the transactions between 7.6.1993 and 10.6.1999. On making demand of the outstanding amount, the accused gave cheque No. 063692 dated 5.8.2004 for Rs. 10 lakh drawn on Padra Nagar Nagrik Sahkari Bank Limited, Padra Branch. The cheque returned unpaid on account of insufficient fund when presented in the bank. Therefore, notice was served to the accused. Despite receipt of notice, the accused did not pay the amount of unpaid cheque but gave false and evasive reply. Therefore, complaint under Section 138 of the Act was filed in the Court of learned Judicial Magistrate First Class, at Padra and it was registered as Criminal Case No. 1987 of 2004.

(3.) The trial Court issued summons. The accused appeared and denied having committed the offence. Therefore, the prosecution adduced evidence. On completion of recording of evidence, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused in his further statement explained that he is not a debtor and the complainant was in need for finance in respect of his agricultural land and wanted to obtain money from the market and therefore asked him to remain as a guarantor and demanded the cheque. Therefore, he gave blank cheque to the complainant who filled in the details in the cheque and presented it in the bank. He is innocent. After hearing learned advocates for the parties, the trial Court by impugned judgement acquitted the accused. Being aggrieved by the said decision the complainant has preferred this appeal.