ANKUR ARUNRAO PAWALE Vs. RITABEN RAMESHBHAI BHATT

JUDGEMENT

(1.) The present appeal under Section 378(4) of the Code of Criminal Procedure, 1973 ( the Code for short) has been preferred, challenging the judgment and order dated 06.08.2012, passed by the learned Judicial Magistrate, First Class, Court No.1, Vadodara, in Criminal Case No.4708 of 2009, whereby the complaint of the appellant (original complainant) under Section 138 of the Negotiable Instruments Act, 1881, has been dismissed for default and respondent- accused No.1, has been acquitted.

(2.) The brief facts of the complaint are that the appellant is a businessman from Vadodara and respondent No.1- accused is the wife of his friend. Because of cordial relations between the appellant and the husband of respondent No.1, an amount of Rs.5,00,000/- was borrowed by respondent No.1 from the appellant. Respondent No.1 issued a cheque dated 18.05.2009 for an amount of Rs.5,00,000/-, bearing No.090034, drawn on Indian Overseas Bank, Kalali Branch, Vadodara, against the amount borrowed by her with an assurance that it would be honoured as and when presented. The appellant presented the cheque to the Bank of Baroda, Laheripura Branch, New Road, Vadodara, on 20th June, 2009. The cheque came to be dishonoured by the Bank of respondent No.1, which was communicated to the appellant vide memo dated 22.06.2009, with an endorsement Today s opening balance insufficient . The appellant issued a statutory demand notice to respondent No.1 on 18.07.2009, which was received by respondent No.1 on 20th July, 2009. Respondent No.1 failed to comply with the demand or reply to the notice within the period of time specified by the provisions of the Negotiable Instruments Act, 1881. The appellant, therefore, filed the above-mentioned criminal case before the learned Magistrate.

(3.) The plea under Section 251 of the Code was recorded wherein respondent No.1-accused claimed to be tried. The trial commenced and the appellant was examined and relevant documents were exhibited. Upon completion of the Examination-in-Chief, in the first sitting of the Court on 06.08.2012, the matter was kept for Cross-Examination in the second sitting. Both the complainant and his advocate were present in the first sitting on that day. However, in the second sitting, the appellant was present but his advocate was not present. The learned Magistrate, therefore, instructed the appellant to call his advocate. The appellant went to call the advocate but he was not found in the Court premises.