KISHANLAL DAYANAND PORWAL Vs. MURLIDHAR CHAUTHMAL SHARMA

JUDGEMENT

(1.) THIS appeal has been preferred by the appellant, after obtaining leave from this Court as per provision under section 378 (4) of the Criminal Procedure Code against the impugned judgment of acquittal of the respondent passed by learned JMFC, Indore in Criminal Case No.168/1993 dated 30 11 1995.

(2.) ACCORDING to the appellant he advanced loan of Rs.40 ,000 / to the respondent on 14 7 1991 and respondent executed receipt (Ex.P.4 C). This amount was to be returned according to the contents of the receipt on 14 9 1991 by the respondent but he failed to repay the amount. Respondent issued cheque of Syndicate Bank, Branch Nanda Nagar , Indore dated 2 9 1992 in favour of the appellant of Rs.40 ,000 / vide Ex.P.1 C. This cheque was deposited on the same day and returned by the bank with letter (Ex.P.2 C) on 3 9 1992 because there was no sufficient fund. The appellant issued notice (Ex.P.5) on 4 9 1992 to the respondent which was received by him. Ex.P.6 is the registered acknowledgment due along with postal receipt. Notice was also sent by U.P.C. respondent sent reply (Ex.P.7 C) dated 21 9 1992 which was received by appellant. In this reply, respondent accepted raising of loan but denied any agreement or settlement to pay any interest. He also stated that he gave cheque without date to the appellant at the time of receipt of Rs.40 ,000 / and also told him that the moment he will get the money he would make the payment and receive back the cheque . He also stated in the notice that appellant in spite of promise, submitted the cheque for encashment in the bank because of which same was returned back to him without payment. The respondent accepted the liability of Rs.40,000/ and expressed his hope to make the payment within 3 4 months as soon as he would receive the amount as he was doing the business as contractor. It is also contended by the respondent in the notice that at the time of handing over the cheque , he informed the appellant that there was no sufficient amount in his account. After receipt of this reply, appellant filed the complaint within stipulated period before the Court below on 16 10 1992 and examined himself as per provision under section 200 of the Criminal Procedure Code on 11 11 1992. The complaint was registered by order dated 10 2 1993 and respondent appeared before the trial Court on 2 4 1993. On 6 8 1993 particulars of the charges were read over to the respondent and he denied the same, thereafter appellant examined himself on 4 11 1995 and also cross examined. His witness Parthsarathy , Manager, Syndicate Bank, Nanda Nagar was also examined and cross examined on 30 6 1 995.

(3.) NONE for the respondent. Though this appeal is listed in weekly and daily cause list commencing from 25 2 2008, but none appeared on behalf of the respondent on any date. Prior to this, on 5 2 2008 counsel for parties appeared and prayed for taking the case on 6 2 2008. On 6 2 2008 counsel for appellant was present but counsel for respondent was not present, therefore, it was fixed on 7 2 2008. On 7 2 2008 also counsel for appellant was present and none appeared for respondent. On 8 2 2008 none appeared for the parties, therefore, this appeal was adjourned with a direction for listing in week commencing from 18 2 2008. On 18 2 2008 on prayer it was listed on 21 2 2008. On 21 2 2008 counsel for appellant was present, but none appeared for the respondent and appeal was adjourned for 22 2 2008. On this date also none appeared for the respondent though counsel for appellant was present. In view of the non appearance of the respondent and his Advocate the appeal cannot be adjourned for indefinite period again and again, therefore, counsel for appellant is heard and record perused.