IMTIYAZ AHEMAD SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Ms. JK Hingorani, learned advocate for the applicant, Mr. Samir Afzalkhan Pathan, learned advocate for the respondent no.2 and Ms. Monali Bhatt, learned Additional Public Prosecutor who has appeared on behalf of the respondent State.

(2.) This application is filed under Sec. 378(4) of the Code of Criminal Procedure seeking leave against the judgment and order dtd. 29/12/2021 passed by the learned 3 rd Additional Chief Judicial Magistrate, Navsari in Criminal Case No.1482 of 2019. By the said judgment and order, the learned Magistrate has proceeded to record the acquittal of respondent no.2- original accused for the offences punishable under Sec. 138 of the Negotiable Instruments Act.

(3.) It is the case of the original complainant that the complainant on friendly terms had advanced an amount of Rs.2,13,000.00 as explained in the para 2 of the impugned judgment and order by way of cheque and cash during the period from 5/1/2017 to 15/12/2017 to the respondent accused. It is further contended in the complaint that the accused had assured the complainant to make repayment of the aforesaid amount of Rs.2,13,000.00 by October 2018 and the post dated cheque bearing dtd. 11/2/2019 was handed over to the complainant on 23/10/2018 by the respondent-accused for an amount of Rs.2,13,000.00. The aforesaid cheque is contended to be presented for realization on 11/2/2019. However, on the same day, the cheque was returned with endorsement of "funds insufficient". This had led to issuance of legal notice under Sec. 138 of the Negotiable Instruments Act upon the respondent accused, which was duly served through RPAD on 21/2/2019. Since the accused failed to make repayment of the aforesaid amount within a period of 15 days and having not complied with the legal notice, the complainant was constrained to approach the Court of learned Magistrate by lodging the aforesaid complaint under Sec. 138 of the Negotiable Instruments Act.