MUJAFFAR HUSSAIN MANSOORI Vs. DEVENDRA TRIVEDI

JUDGEMENT

(1.) THE appellant/complainant has filed this appeal after grant of leave to file appeal against the impugned judgment of acquittal of respondent herein passed by learned III AS J, Indore in Criminal Appeal No. 56/01, dated 1-9-2001 arising out of judgment of conviction of respondent Devendra Trivedi, passed by learned Judicial Magistrate First Class, Indore (Ku. Sunita Barlo) in Criminal case No. 1099/00, convicting the respondent under Section 138 of the negotiable Instrument Act (for short "the Act") sentenced to RI for six months and fine of Rs. 3,000/- (Three Thousand) and compensation amount of rs. 12,000/- (Twelve Thousand) was ordered to be given to the appellant.

(2.) THIS is the appeal of the year 2001. Respondent is represented by his Advocate but on 14-2-2008 appeal was listed for final hearing and the advocates of both the parties were not present, therefore adjourned for two weeks. It was again listed on 25-3-2008 and on this date Counsel for the appellant Vijay Sharma was present and Counsel for the respondent was not present, therefore, this Court ordered for issuance of Special Post Card. (SPC)intimating the respondent, who is on bail for final hearing of this appeal on 8-4-2008. In spite of this neither the Counsel for the respondent nor the respondent is present today in first half of the day and also in second half. In view of Supreme Court judgments rendered in cases oikishan Singh Vs. State of M. P. , (1996) IX SCC 372, Bani Singh and others Vs. State of U. R, AIR 1996 SC 2439 and Dharampal and others Vs. State of U. R, Judgment Today 2008 (I) SC 172, this Court heard this appeal on merit in absence of the respondent as well as his advocate. In case of Bani Singh (supra), in Paragraph 16 Supreme Court has observed as under:-

(3.) THE appellant filed a criminal complaint before the learned Judicial magistrate First Class, Indore on 30-3-1999. His case was that he and respondent were friends. On 30-12-1998, respondent came to his house and borrowed cash amount of Rs. 12,000/- for fulfilling the need of his family. Respondent issued post dated cheque No. 987721, dated 15-1-1999 towards the repayment of loan amount. On 14-1 -1999 respondent approached the appellant and requested him for producing the cheque for encashment on 25-1-1999 in place of 15-1-1999. The appellant submitted the cheque for encashment in nagrik Sahkari Bank, 12, Subhash Marg, Indore, but same was not honoured and returned back on 30-1-1999 to the appellant with remark of stop payment. The appellant sent a notice through his Advocate dated 13-2-1999 demanding the cheque amount, but same was returned back by the respondent deliberately knowing well about the notice and appellant received the envelope on 27-2-99 with a remark that ad-dressy was not available in time.