VINOD SURYABHAN GUJAR Vs. DIPAK NANDLAL ZANWAR

JUDGEMENT

(1.) The appellant is aggrieved by the judgment and order dated 13-7-2015 in Summary Criminal Case 760/2011, delivered by the learned Judicial Magistrate First Class, Akot, acquitting the respondent of offence punishable under Section 138 of the Negotiable Instruments Act , 1881 (hereinafter referred to as the "Act").

(2.) Heard Shri V.B. Bhise, learned Counsel for the appellant. None appears for the respondent.

(3.) The genesis of the appeal is in the complaint under Section 138 of the Act instituted by the appellant (hereinafter referred to as the "complainant") inter alia alleging that on 06-4-2011 the complainant sold 32 quintal cotton to the accused who owns "Poonam Ginning Factory" for Rs.2,03,616/-, the accused issued cheque 6956794 for Rs.2,03,616/-, drawn on Akola Janata Commercial Bank Limited, Akot Branch dated 25-4-2011 towards discharge of the said liability, the said cheque was presented for encashment and the said cheque was dishonoured. It is further alleged in the complaint that the accused contacted the complainant on 11-6-2011 with an offer to make part payment, which offer the complainant did not accept. The complainant deposited the said cheque again on 12-10-2011, again the said cheque was dishonoured, a statutory notice was sent to the accused which was not complied with and hence the complainant set in motion proceedings under the Act. The complainant examined himself as C.W.1. The evidence is broadly consistent with the averments in the complaint. In the cross-examination, the attention of the complainant was drawn to bill Exhibit 48 issued by the accused which purports to record a transaction of sale of cotton by the complainant to the accused. Exhibit 48 bears an endorsement "paid". The explanation of the complainant is that the said endorsement on Exhibit 48 was made by the accused after handing over the disputed cheque. C.W.1 admits that he is not in a position to state as to by which vehicle or through which driver the cotton was delivered to the accused. The complainant further admits that the amount mentioned in the disputed cheque Exhibit 42 cannot be reconciled with the amount recorded in Exhibit 48. It is brought out in the cross- examination of the complainant that the disputed cheque came into the possession of the complainant only on 25-6-2011 and that prior to the said date he was not in possession of any cheque issued by the accused. The attention of the complainant is invited to endorsement/writing on the reverse of the disputed cheque Exhibit 42. It is recorded on the reverse of the disputed cheque Exhibit 42 that out of the amount of Rs.2,03,616/- amount of Rs.50,616/- is paid and the balance is Rs.1,53,000/-. The explanation of the complainant is that the said writing is that of the accused. A suggestion is given to the complainant that he is engaged in illegal money lending, which suggestion is denied. The complainant, however, admits that the accused is a respected and prosperous person with substantial property in Akot.