(1.) Heard Mr. Badhe, learned counsel for the appellant/original complainant and Mr. Agrawal, learned counsel for the respondent/original accused. Admit. Heard finally with the consent of the learned counsels for the rival parties.
(2.) The present appeal arises out of the judgment by the learned Sessions Court in Criminal Appeal No.30/2018 dated 5. 01.2022 whereby the judgment dtd. 18/1/2018 passed by the learned Chief Judicial Magistrate, convicting the accused for the offence punishable under Sec. 138 of the Negotiable Instruments Act (hereinafter to be referred as the "N.I. Act") and sentencing him to suffer simple imprisonment for three months and to pay a compensation of Rs.10,50,000.00, in default to suffer simple imprisonment for one month, has been set aside on the ground that since an amount of Rs.3,90,000.00 was recovered by the complainant prior to the issuance of cheque by the accused which is claimed to have been admitted in his evidence, he was not entitled to present the cheque, but was liable to return it and take a fresh cheque for the balance amount and present it thereafter (para 10 page 19/20). The complainant having not so done it was held that the presumption under Sec. 139 of the N.I. Act stood rebutted and therefore, the accused was entitled to an acquittal which was so ordered.
(3.) The factual matrix is as under :
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