PARAKRAMSINH HARISINH VAGHELA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is filed at the instance of the original complainant under Sec. 378(4) of the Code of Criminal Procedure challenging the judgment and order dtd. 11/5/2007 passed by the 9th Additional Senior Civil Judge and Judicial Magistrate, First Class, Nadiad in Criminal Case No.505 of 2006. By the said judgment and order, the learned Magistrate has recorded acquittal of the present respondent - original accused for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "Act").

(2.) The case alleged by the original complainant before the trial Court in brief is reproduced as under:

(3.) Heard Mr. D.J.Bhatt, learned advocate for the appellantoriginal complainant. At the outset, he has invited my attention to the fact that pending this appeal the original complainant - Prakramsinh Vaghela has expired and his heirs and legal representatives have been brought on record pursuant to the order dtd. 10/10/2022 passed by this Court. Learned advocate has placed reliance upon the agreement dtd. 6/6/2002 produced at Exh.21 to contend that an indisputable amount of Rs.1.00 lakh was borrowed by the respondent -accused for the purpose of development of his business from the original complainant. Not only the disputed cheque was admitted by the respondent as can be noticed from the recitals of the agreement which was not disputed but from the further statement of the accused recorded under Sec. 313 of the Code of Criminal Procedure. It was therefore submitted that the essential ingredients to attract the offence under Sec. 138 of the Act has been fulfilled. By virtue of the aforesaid evidence, it has been established that the respondent accused had drawn the cheque in favour of the complainant for payment of an amount of Rs.1.00lakh. The cheque was presented within the period of three months from the date it was drawn i.e. 28/11/2005 and the cheque had been returned back by the bank unpaid because of insufficient funds in the account of the respondent accused. The demand was raised by the original complainant for payment of the aforesaid amount by giving notice to the respondent accused and inspite of sufficient time being granted, the respondent - accused had failed to make payment of such outstanding amount.