BABULAL Vs. GAFUR

JUDGEMENT

(1.) Being aggrieved by the judgment dated 30.10.02 passed by Sessions Judge, Mandsaur in Cr. A.No. 180/02 whereby the judgment dated 4.9.02 passed by CJM Mandsaur in Criminal Case No. 997/99, whereby the respondent No. 1 was convicted for an offence punishable under Section 138 ofNegotiable Instruments Act (which shall be referred to hereinafter as "NI Act") and was sentenced to undergo for a period of six months' RI with fine of Rs. 1,00,000/- was set aside, the present appeal has been filed.

(2.) Short facts of the case are that the appellant filed a complaint on 22.3.99 alleging that the respondent No. 1 purchased motor pipe and other fitting material from the appellant on 21.7.98 of which the bill was issued by the appellant. It was alleged that the bill was duly signed by respondent No. 1 and as cheque dated 1.9.98 of District Co-operative Central Bank, Mandsaur was issued by the respondent No. 1. It was alleged that appellant submitted the cheque through its banker State Bank of Indore, Branch Mandsaur, for collection but the same was returned on 11.2.99 with a memorandum of the Bank to the effect "Stop Payment". It was alleged that a notice was issued to the respondent No. 1 on 23.2.99 by UPC as well as by registered post but inspite of that neither the cheque amount was paid nor the notice was replied, hence complaint was filed with a prayer that the respondent No. 1 be convicted. After taking cognizance the learned Trial Court issued notice to the respondent No. 1. After framing of charge and recording of evidence respondent No. 1 was convicted as stated above. In appeal filed by the respondent No. 1 the judgment passed by the learned trial Court was set aside and the respondent No. 1 was acquitted, against which present appeal has been filed.

(3.) Learned counsel for the appellant argued at length and submits that the impugned judgment passed by the learned Appellant Court is illegal and deserves to be set aside. It is submitted that the only responsibility of the appellant was to issue notice on the permanent address of respondent No. 1. It is submitted that learned Appellate Court has acquitted the respondent No. 1 on the ground that the appellant himself has admitted that the notice was not served on the respondent No. 1. It is submitted that efforts were made by the appellant to serve the respondent and even it is assumed that respondent No. 1 was,not served, then too, respondent No. 1 was liable to be convicted. It is submitted that appeal filed by the appellant be allowed and the impugned judgment passed by the learned Appeallant Court be set aside.