NIKUNJBHAI CHANDRAKANT BOOMIA Vs. ATULBHAI CHHOTABHAI PARMAR

JUDGEMENT

(1.) Judgment and order dated 30.5.2008 passed by learned 13th Additional Senior Civil Judge & JMFC, Vadodara, in Criminal Case No. 832 of 2002 recording the acquittal for respondent No.1 Atulbhai Chhotabhai Parmar for the offence punishable under Section 138 of the Negotiable Instruments Act (for short "N.I.Act") is assailed in this appeal under Section 378 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") .

(2.) Complaint under Section 142 of the N.I.Act came to be lodged stating that the cheque in the sum of Rs.1, 01, 000/- (Rupees One Lakh One Thousand only) bearing No. 0188919 dated 31.7.2001 Account No.1745 drawn on Baroda Peoples Co-operative Bank, Karelibaug Branch, Vadodara, was given to the respondent No.1 as financial help at his request and subsequently a further sum of Rs.24, 000/- was given to him in cash by the complainant, and that to discharge the said liability, a cheque in the sum of Rs.1, 25, 000/- (Rupees One Lakh Twenty Five Thousand only) came to be issued by the first respondent dated 31.1.2002 drawn on Bank of India, Rajmahal Road Branch, Vadodara, Account No. 8999 bearing cheque No.070475, which on presentation on 31.7.2002 in the bank was dishonoured. Statutory notice under clause (b) of proviso to Section 138 of N.I.Act was therefore given which was replied by the respondent No.1 and eventually the complaint was filed, and after following the due procedure, the respondent No.1 was tried and acquitted.

(3.) The respondent through his witness Exh.47 pleaded that the cheque in question lacked consideration since the purpose for which it was given was not fulfilled by the complainant. It is his case that the complainant was administrator of the property of her aunt (father's sister) wherein the respondent No.1 was the tenant since 30 years, and in order to get the property repaired, the father of the second respondent was requested to vacate the same with a promise that he would be reinducted as tenant after reparation, and since the reparation were to consume some time, his father was given cheque in the sum of Rs.1, 01, 000/- (Rupees One Lakh One Thousand only) above-referred so as to enable him to make alternative arrangement for himself. That eventually after reparation of the house, it was decided to purchase the same in the sum of Rs.1, 25, 000/- (Rupees One Lakh Twenty Five Thousand only) . That the cheque in the sum of Rs.1, 01, 000/- (Rupees One Lakh One Thousand only) was received in the account of the accused in absence of the father of the accused holding the account, and therefore, the respondent No.1-accused issued the cheque in the sum of Rs.1, 25, 000/- (Rupees One Lakh Twenty Five Thousand only) towards the consideration of the proposed purchase of the house, which failed, and thus, at the request of the respondent accused, the bank stopped the payment of the said cheque.