HASMUKHBHAI KANTILAL PATEL Vs. CHANDRIKABEN PANKAJKUMAR SHAH

JUDGEMENT

(1.) This appeal under Sec. 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") filed by the appellant original complainant against the respondent accused Nos. 1 and 2 challenging the judgment and order of acquittal passed by learned Metropolitan Magistrate, Court No.2, Ahmedabad dtd. 5/5/2005 in Criminal Case No. 877 of 1999, whereby respondent accused have come to be acquitted of the charge punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act").

(2.) It is the case of the complainant in the complaint that the complainant as also accused are in the business of trading in Tea. Complainant supplied the goods, as ordered by accused No. 2 firm - M/s. Babulal Trikamji and Sons. On demanding the amount for the goods supplied, Managing Partner of respondent No. 2 accused gave cheque issued from Proprietor M/s. Jaimin Traders - Chandrikaben Pankajkumar Shah, which is the sister concern of the respondent No. 2 firm for an amount of Rs.1,22,238.00. The said cheque, on presentation with the bank of the complainant, returned unpaid for 'insufficient fund'. Therefore, a notice came to be issued by the complainant, which was not replied despite service of it by the accused. Therefore, aforesaid complaint has come to be filed.

(3.) Mr. Nandish Thacker, learned advocate, for Thakkar and Pahwa Advocates, learned advocate for the appellant, submitted that in a prosecution for an offence under Sec. 138 of "the Act", complainant has to prove that cheque given by the accused is returned unpaid, within limitation notice has to be issued and a complaint has come to be filed within permitted time limits.