PATEL BABUBHAI NARSINHBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Appeal is preferred under Sec. 378(4) of the Code of Criminal Procedure, 1973, (for short "the Code") against the judgment and order of acquittal dtd. 8/9/2017 passed by the learned Judicial Magistrate First Class, Vadnagar, in Criminal Case No.104 of 2013 filed by the appellant - original complainant for the offence under Sec. 138 of the Negotiable Instruments Act, 1881 (for short "N.I. Act, 1881") acquitting the respondent No.2 - original accused.

(2.) It is the case of the appellant - original complainant that the accused herein had approached him for borrowing an amount of Rs.1.00 Lakh for the business purpose. Since the complainant had known the accused, decided to lend the amount of Rs.1.00 Lakh for which he had withdrawn an amount of Rs.1.00 Lakh from Dena Bank, Shipor Branch on 29/9/2011 and handed over the said amount to the accused at his native place Karsanpura. It is the case of the appellant that the accused had agreed to repay such amount within a period of one year, however, inspite of the same, the accused failed to repay the amount. Ultimately, on 10/1/2013, the accused had handed the cheque bearing No.086731 of State Bank of India, Thakkarbapanagar Branch, for an amount of Rs.1.00 Lakh on 10/1/2013. The appellant - original complainant deposited the said cheque in his bank account, but the said cheque was not realized and had returned back on 15/1/2013 with an endorsement "insufficient funds" In such circumstances, the appellant issued a legal notice to the respondent accused through his Advocate on 4/2/2013 by RPAD Post and the said notice was served upon the accused on 7/2/2013 as reflected from the acknowledgment slip signed by one of the family member of the accused. The said notice though being duly served on respondent - accused, however, did not reply to such legal notice nor he paid the cheque amount to the appellant - complainant. In such circumstances, the appellant - complainant was constrained to file the criminal complaint against the respondent - accused, which came to be registered as Criminal Case No.104 of 2013 before the learned Judicial Magistrate First Class, Vadnagar.

(3.) Upon examination of the complainant and on perusal of the complaint, the learned Judicial Magistrate First Class, Vadnagar, issued summons under Sec. 204 of the Code thereby calling upon the accused to appear before the Court. The respondent - accused had entered appearance through his Advocate and his plea came to be recorded vide Exhibit 12. Ultimately, Criminal Case was conducted as summons triable case by the learned Judicial Magistrate First Class, Vadnagar. The charge came to be framed against the respondent - accused.