DILAWARSINH MODUBHA ZALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant - original complainant has preferred this appeal under Section 378 of the Code of Criminal Procedure and challenged the judgment and order of acquittal passed by learned Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surendranagar, on 8.6.2010 in Criminal Case No. 494 of 2005 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act ("the Act" for short).

(2.) According to the complainant, he is a retired L.I.C. Employee and is doing business of money lending since last about one year and is holding Money Lenders Licence. Accused No. 1 is a partnership firm. Accused Nos. 2 and 3 are partners thereof. As Accused No. 1 was in need of finance for carrying on its business, accused Nos. 2 and 3 obtained in all Rs. 7 lakh as hand loan. On demand of the. amount advanced to the accused, Accused No. 2 on behalf of Accused No. 1, gave cheque No. 4313446 dated 3.1.2005 for Rs. 7 lakh drawn on Surendranagar Peoples Co-operative Bank, Surendranagar. On presentation of the said cheque in the bank, it returned with endorsement "funds insufficient". Therefore, the complainant, inadvertently, served a notice dated 10.1.2005 to Accused No. 2 believing that the cheque is drawn by Accused No. 2 in his personal capacity. The said notice was served on 12.1.2005. Thereafter, again notice dated 2.2.2005 was served to the accused. Despite that, the accused did not pay the amount. Therefore, the complaint was filed.

(3.) Trial Court issued summons and the accused appeared and pleased not guilty to the charges and claimed to be tried. Therefore, the complainant adduced evidence. On completion of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to them. The accused in their further statement recorded under Section 313 of the Code of Criminal Procedure, 1973, denied having committed the offence and stated that false case is filed against them. After hearing learned advocate for the parties, the trial Court by impugned judgement acquitted the accused. Being aggrieved by the said decision, the present appeal has been filed.