CHAUDHARI DHIREN BABULAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is filed under Sec. 378 of the Code of Criminal Procedure, 1973 ('the Cr.P.C.' referred hereinafter) challenging the judgment and order of acquittal passed by the learned 10th Additional Judicial Magistrate First Class, Mahesana in Criminal Case No.8342 of 2009 dtd. 20/12/2023 acquitting the respondent for the charges punishable under Sec. 138 of the Negotiable Instruments Act, 1886 ('the N.I.Act' referred hereinafter) by exercising the power under Sec. 256 of the Cr.P.C.

(2.) It is the case of the complainant that the complainant is doing the business of Amul, BSNL and Sky advertisement and the accused was serving as a stenographer at CBI Court, Ahmedabad, however, he was suspended from the Court and therefore, he was staying with the father at Mahesana. When the accused was serving at Gandhinagar, at that point of time with regard to the purchasing of the plot at Gandhinagar, Rs.10.00 Lakh was paid to the respondentaccused under the assurance that the sale deed would be executed in favour of the complainant, however, subsequent to the said transaction, the accused had shown unwillingness to execute the sale deed. Therefore, the amount which was paid towards the sale consideration was demanded back. On repetition of demand, cheque came to be issued in favour of the complainant by the accused on 1/5/2009 of Rs.10.00 Lakh with an assurance that on depositing the same, amount would be credited in the account of the complainant. On depositing the cheque with the Bank, it was returned with an endorsement of 'fund insufficient'.After following the due procedure prescribed under the Act, private complaint came to be filed before the competent court at Mahesana.

(3.) Learned trial Court after recording the verification, issued the summons on 6/8/2009 thereafter the accused came to be appeared before the learned trial Court on 4/1/2010 and his plea came to be recorded below Exhibit 7 wherein he pleaded not guilty and claimed to be tried. Thereafter, the matter came to be adjourned on 11/2/2010, on that day the application was given by the accused seeking exemption which was granted and the matter was adjourned for the purpose of exhibiting the documents produced by the complainant. Thereafter, from 4/5/2010 the accused started to remain absent and therefore, NonBailable Warrant came to be issued which was not executed till the impugned order was passed.