SHYAM S/O MAHABIR SHAHU Vs. GULABRAOJI WASNIK

JUDGEMENT

(1.) BEING aggrieved by the judgment and order dated 15.4.2008 delivered by the Special Judge, Nagpur in Summary Case No.1008 of 2007 whereby respondent No.1/accused has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, appellant/original complainant has preferred the present appeal.

(2.) IT is the case of appellant that respondent No.1 was in need of Rs.1,50,000/- and he approached appellant for financial assistance. Acceding to the demand of respondent No.1, appellant extended hand-loan of Rs.1,50,000/- to respondent No.1 on 3.10.2005. In order to secure loan, respondent no.1 had issued three cheques of Rs.50,000/- each to the appellant, one of which being cheque No.356158 dated 3.10.2006 drawn on Parmatma Ek Sewak Nagarik Sahakari Bank, Nagpur. Appellant presented the said cheque with his banker viz. Shikshak Sahakari Bank for encashment, but the cheque could not be honoured since the bank account of respondent No.1 was closed and such intimation was given to appellant under memorandum dated 20.11.2006. Appellant, then, issued legal notice dated 13.12.2006 to respondent No.1; respondent No.1 received it, but denied the liability under his reply dated 2.1.2007 and, therefore, appellant filed the complaint before the Special Judge, Nagpur under Section 138 of the Negotiable Instruments Act.

(3.) HEARD learned counsel for the parties at length and perused the record. It is borne out from record that the bag of accused was lost on 21.5.2003 and for such a loss, he had lodged police report on 22.5.2003 and intimation to that effect was given by him to the Bank on 23.7.2003. From the evidence of bank staff Ms Arti Nimwale, accused had closed his account on 5.11.2003. It is a matter of record that the alleged transaction between complainant and accused took place on 3.10.2005. It, therefore, appears to be incredible that accused would issue cheque of an account to his creditor after a period of two years of closure of such bank account to secure hand-loan. Complainant on one hand claims that he was having good relations with accused, but does not specify the actual need of the accused warranting financial assistance, on the other. Moreover, conduct of the complainant that nothing in writing was obtained from accused while giving him hand-loan of Rs.1,50,000/-also does not appear to be natural.