N. K. SABARWAL Vs. RAUF KHAN

JUDGEMENT

(1.) This petition is directed under Sec. 378 (4) of Code Criminal Procedure for seeking special leave to appeal against the judgment dated 19.1.2006 passed by Judicial Magistrate, First Class Jabalpur in Complaint Case No. 97/05 acquitting the respondent from the charge punishable under Sec. 138 of Negotiable Instruments Act, 1988 (In short "the Act").

(2.) The facts giving rise to this petition are that the complainant being a dealer of medicine was under receipt of cheque No. 8785311 for sum of Rs. 1,30,000.00 from the respondents in connection of his business transaction. One affidavit was also sworn by the respondent in order to explain the circumstance for payment through cheque. The cheque was deposited with his Banker i. e. Central Bank of India for collection but the same was returned unpaid firstly on 25.9.2002, and then on 13.11.2002, 4.12.2002 and lastly on 21.12.2002 but on account of insufficient fund in the account of respondent same was dishonored and returned to the applicant with the(2) memo of the Bank. Thereafter as alleged on 28.12.2000 a registered notice under Sec. 138(b) of the Act was sent to the respondent on behalf of the applicant, but in the stipulated period payment of cheque was not made to the applicant. Hence, the said complaint was preferred for the offence under Sec. 138(b) of the Act. On taking cognizance against the respondent under the aforesaid section, he was appeared in the trial court. After recording the plea trial was held in which the applicant has examined himself and one other witness namely Shri Sharad Kumar Rakesh while two witnesses namely Shri Vijay Bhan Singh and Shir R.P. Dubey, Sub Post Master were examined by the respondent on his defence.

(3.) On appreciation of it the transaction in between the parties was found genuine but on account of non-compliance of procedure of Sec. 138(b) of the Act the respondent was acquitted. Hence, this petition is preferred for special leave to appeal.