RAM JI GAUTAM Vs. ABHAI PATEL

JUDGEMENT

(1.) Heard learned counsel for the applicant-appellant on the application for grant of leave to file the appeal against impugned order of acquittal dated 26.11.2016 passed by Judicial Magistrate, Court No.1, Varanasi in Complaint Case No.951 of 2012 (Ram Ji Gautam Vs. Abhai Patel), under Sec. 138 of Negotiable Instrument Act, P.S. Maduradeeh, District Varanasi, acquitting the accused-opposite party of the charges framed against him.

(2.) Learned counsel for the applicant-appellant contended that learned Magistrate has acted wrongly in rejecting the complaint and acquitting the respondent from the charges of offence under Sec. 138 N.I. Act; that it was proved from the evidence on record that the respondent had borrowed a sum of Rs. 2,50,000.00 from the applicant-appellant with an assurance of returning the same within six months and when he did not return the amount so paid to him on 24.1.2010 within six months, on repeated requests he issued cheque no.47444 to the applicant on Allahabad Bank, Ravindrapuri Branch, Varanasi on 7.7.2011 and upon tendering by applicant-appellant to his banker on the same day, the banker returned the cheque with the endorsement of its being dishonoured for want of funds in the account concerned; that the applicant-appellant served a legal notice to the respondent through his counsel on 19.2011 and when the payment was not made he filed the complaint on 30.9.2011 in which process under Sec. 204 Cr. P.C. were issued against the respondent on 5.6.2012; that the appellant-complainant proved his case by producing himself as a witness while the respondent with malafide intentions even denied his signatures on the cheque; that the evidence of Hand Writing and Finger Print Expert Vikas Srivastava as D.W.-1 is not admissible in evidence; that the impugned order is liable to be set-aside and allowing the complaint the respondent is liable to be convicted and sentenced; that the appellant has every hope of success in appeal and the leave to file appeal may kindly be granted.

(3.) Upon hearing learned counsel and perusal of record and before proceeding further, it will be appropriate to reproduce the provisions of Sec. 138 and 142 of N.I. Act as under:-