YUGAL KISHORE Vs. MANISH

JUDGEMENT

(1.) The appellant has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 (for short ' Cr.P.C '), against the judgment dated 28/02/2015 passed by Additional Chief Judicial Magistrate, District Indore in Criminal Case No.10530/2009, whereby the the respondent/accused has been acquitted of the offence under Section 138 of Negotiable Instruments Act, 1881 (for short 'The' Act, 1881').

(2.) Brief facts of the case are that the respondent had taken a loan of Rs.1,50,000/- from the applicant and he gave a cheque bearing No.044165 dated 27/11/2008 for repayment of the aforesaid loan. When the said cheque was presented by the applicant in his bank account for realisation, the same was returned unpaid by the bank with the endorsement of insufficient funds. The applicant gave a statutory notice to the respondent through his advocate, however, the respondent gave a false reply to the notice and did not pay the cheque amount. Then the applicant filed a private complaint against the respondent for commission of offence under Section 138 of ' The Act , 1881'.

(3.) Trial Court after considering the evidence adduced by the parties, came to the conclusion that the applicant has failed to establish that on the date of alleged transaction he was having sufficient funds to advance the loan amount of Rs.1,50,000/- to the respondent and he has not given any information in his income tax return about the advancement of loan to the respondent. The cheque in question is alleged to have been issued on 27/11/2008 and on 28/12/2008 the respondent lodged a report regarding missing of the said cheque at Police Station - Vijaynagar. The appellant has presented this cheque in his bank account for encashment on 13/04/2009 and he has not assigned any reason that why he has not presented this cheque earlier for encashment.