SHIVSHANKAR B CHOUDHARY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Application is filed to challenge the order dated 28.2.2007 of the learned Sessions Judge for Greater Bombay in Criminal Appeal No.266 of 2006, acquitting Respondent No.l and refunding the amount deposited by him. The Applicant was the original Complainant, who filed a Complaint under Section 138 of the Negotiable Instruments Act (the said Act) against Respondent No.2. The learned Metropolitan Magistrate, 50th Court, Vikroli, Mumbai, convicted Respondent No.2, sentencing him to suffer a simple imprisonment for 3 months, levied a fine of Rs.1,000/ and granted compensation to the Applicant of Rs.1,50,000/ . This order came to be set aside in the aforesaid Appeal, under which Respondent No.2 came to be acquitted.

(2.) Consequently, there are inconsistent judgments. Whereas the Applicant is supporting the judgment of the learned Metropolitan Magistrate, Respondent No.2 has supported the impugned judgment. The reasonings in both the judgments are diametrically opposite. It is, therefore, for this Court to weigh the evidence, both oral and documentary, to come to a conclusion for acceptance or rejection of the reasonings in the impugned judgment and consequently, the acquittal of Respondent No.2.

(3.) It is the case of the Applicant that he lent a friendly loan of Rs.l Lakh and Rs.40.000/ in cash to Respondent No.2. Respondent No.2 issued a cheque drawn on the Abhyudaya Co operative Bank Ltd. for Rs.1,40,000/ . The cheque came to be dishonoured. The Notice of Demand is not replied. It is shown to have been sent by Post. The postal endorsement is that though the intimation has been posted, it has not been claimed. It has been returned on 18.6.2003. This is after filing of several complaints by Respondent No.2 as well as his wife relating to dispossession of Respondent No.2 from his residential premises which shall be considered presently. It has to be seen whether non acceptance or non claiming of the notice, by itself, is fatal to the case of Respondent No.2.