KAILASH Vs. JIJABAPU

JUDGEMENT

(1.) Present application has been filed by the original complainant for seeking leave to appeal. The complainant had filed S.T.C. No. 377 of 1998 before Judicial Magistrate (F.C.), Sangamner, District Ahmednagar, contending that the present respondent no.01 - original accused had committed offence punishable under Section 138 of the Negotiable Instruments Act, 1881 [For short, "N.I. Act"]. The accused has been held guilty and has been punished for the offence by the learned Judicial Magistrate (F.C.). He had preferred appeal bearing Criminal Appeal No. 01 of 2006 before the Additional Sessions Judge, Sangamner, District Ahmednagar. The said appeal came to be decided on 02.03.2012 whereby the appeal came to be allowed and original accused has been acquitted. By this application, original complainant seeks to challenge the said acquittal of the respondent no.01.

(2.) The complainant had come with a case, that the complainant and the accused were in partnership business which was carried out in the name and style 'Amit Pules Limited', M.I.D.C., Sangamner. The said partnership came to an nd by 23.05.1997. An amount of Rs. 1,37,000/- was due from the accused. Accused was not having cash and, therefore, he had issued two cheques bearing nos. 036648 and 036649, dated 01.02.1998, drawn on Amritvahini Co-operative Bank Ltd., Branch Sangamner, for Rs. 68,500/- each. The said cheques were deposited by the complainant in his account with Ahmednagar District Central Co-operative Bank, Market Yard Branch, Sangamner. But they came to be dishonoured on 11.04.1998. Legal notice was issued by the complainant on 24.04.1998 to the accused and he was called upon to pay the amount under the cheques. In spite of receipt of the said notice, when accused failed to comply with the notice, the complaint was filed.

(3.) Plea of the accused was recorded who pleaded not guilty. Trial was conducted. After completion of the trial, the learned Magistrate has held the accused guilty of the offence punishable under Section 138 of the N.I. Act and sentenced him to suffer simple imprisonment for nine months and to pay fine of Rs. 10,000/-, in default of payment of fine, simple imprisonment for three months. The said conviction was challenged in Criminal Appeal No. 01 of 2006 wherein the learned appellate court has come to the conclusion that the complainant has failed to prove that the accused had issued both the cheques towards the legally enforceable debt or liability and, therefore, the said appeal came to be allowed. It was mainly taking into consideration Section 69(1) of the Indian Partnership Act, 1932. Accused was acquitted of the offence punishable under Section 138 of the N.I. Act. Hence, this application.