MALLESH CHANDRAIA YENGULWAR Vs. B N CHIDE

JUDGEMENT

(1.) By this appeal, the appellant (original complainant) challenged order in Complaint Case No. SCC 4002/2005, which was2 decided by learned JMFC, Rajura, acquitting the accused Bhaurao Nanaji Chide of offence punishable under Section 138 of Negotiable Instruments Act. The appellant have challenged validity and legality of the impugned judgment and order on the ground that, the findings recorded by learned JMFC were contrary to the evidence on record. The learned JMFC failed to notice that, the fact regarding knowledge of the complainant regarding dishonour of the cheque in question was specifically mentioned in the demand notice and the same was never disputed by the accused. It is contended that, the complainant had duly proved legally enforceable liability. According to the complainant, the cheque bearing No. 0086015, dated 26/11/2004, in the sum of Rs. 34,000/- drawn upon the Bank of India, Rajura, was presented to UCO Bank, Ballarpur on 19/04/2005. The Bank by intimation memo dated 18/05/2005 informed the fact of dishonour of cheque on account of insufficient funds in the account of accused. Thus, the cheque in question was returned to the complainant along with intimation of dishonour on 23/05/2005. Since the cheque was returned due to dishonour thereof, the complainant issued notice of demand dated 21/06/2005 to the accused demanding payment of the amount of cheque within 15 days. The notice was received by the accused on 22/06/2005, but despite sufficient time granted for the accused to make payment, the accused failed to pay, and therefore, the complainant had no other option but to lodge complaint under Section 138 of the Negotiable Instruments Act.

(2.) At trial, the learned Trial Magistrate, Rajura, had accepted evidence of the complainant on affidavit dated 28/07/2006, on the basis of which and after further examination-in-chief on 25/08/2006, the accused was required to cross-examine the complainant on 07/12/2007. The accused had also entered in the witness box in support of his defence and was cross-examined. Thus, after the evidence was recorded, learned Trial Magistrate by the impugned judgment and order dated 08/04/2008, acquitted the accused of the offence punishable under Section 138 of the Negotiable Instruments Act.

(3.) The learned advocate for the complainant submitted that, the complainant had succeeded to establish the fact, that accused had issued a cheque bearing no. 0086015, dated 26/11/2004, in the sum of Rs. 34,000/- which was drawn from the Bank of India, Rajura Branch in favour of the complainant towards discharge of Legally enforceable debt of liability. It is submitted that, the complainant also established the fact that, a cheque was presented to his banker i.e. UCO Bank, Ballarpur, for encashment within prescribed validity period and the fact that cheque was returned dishonoured for reason funds insufficient in the account of accused. However, learned Trial Magistrate held that, the complainant did not prove the fact that, complainant had issued a notice to the accused demanding the cheque amount within prescribed period from the date of receipt of the intimation memo regarding dishonour of cheque and thereby held that offence punishable under Section 138 of the Negotiable Instruments Act was not made out against the respondent-accused.