NARESH SADANAND BUDHANI Vs. LAXMANDAS BAJARMAL ADVANI

JUDGEMENT

(1.) By this application original complainant claims leave to prefer appeal against the acquittal.

(2.) Applicant filed complaint against respondent alleging offence under section 138 of Negotiable Instruments Act (hereinafter referred to as the Act for short). According to him, in the month of April, 2000, he had advanced an amount of Rs. 1,08,000/- to the accused and for its repayment the accused had issued cheque dated 3-5-02. Said cheque was presented in the bank, however, same came to be dishonoured. After the intimation of dishonour of the cheque, demand notice was issued on 8-5-02 but the same was returned unserved. So second notice dated 16-5-02 came to be issued and it was served on the respondent. Inspite of receipt no payment is made. So alleging offence under section 138 of the Act, complaint came to be filed.

(3.) The accused came with a defence that there was no transaction at all in between complainant and the accused. His defence is specific that he had transaction with the father of the complainant. The father of the complainant by way of security obtained blank cheque from him. The complainant had stolen away the said cheque and lodged false complaint. In support of his contention complainant examined himself and produced on record the documents. His version is that there was a transaction between him and the accused. On behalf of the accused complainant's father is examined as a witness. He supported the defence that the cheque in dispute was given to him by the accused by way of security and it was a blank cheque. His son who was staying with him upto 1-5-2002 left the house and that time he had stolen away the cheque in question. He had filed complaint with M. I. D. C. police station. He claimed that this fact came to his knowledge when accused approached him and asked whether he had presented blank cheque in the bank. Thereafter second complaint also came to be filed. As the police did not take cognizance, he had filed complaint in Court against his son the present complainant. Not only this he has produced on record 2 documents Exhs. 44 and 45 admitting the transaction with the original accused and accused giving him cheque. Accepting this evidence, learned Magistrate held that the presumption arising under section 139 of the Act has been rebutted and accused came to be acquitted.