DEEPAK CHORDIA Vs. RAJENDRA SEN

JUDGEMENT

(1.) BY the instant leave to appeal, appellant-complainant has challenged the impugned judgment dated 27. 8. 2002 passed by the learned Additional Sessions Judge No. 3, Udaipur (for short, "the lower appellate Court"), by which the appeal filed by respondent-accused has been allowed and he has been acquitted of the offence under Sec. 138 of the Negotiable Instrument Act (for short, "the Act") reversing the judgment of conviction and sentence dated 31. 1. 2002 passed by the learned additional Chief Judicial Magistrate No. 2, Udaipur (for short, "the Trial Court" ).

(2.) THE facts of the case, relevant and necessary for disposal of this leave to appeal, are that in pursuance to the agreement Ex. D/1 on record to Trial court, the appellant-complainant period of marble cutting work for the accused-respondent and in lieu thereof, the accused-respondent issued two cheques dated 3. 10. 1999 and 3. 11. 1999 for a sum of Rs. 1,15,000/- and 50,000/-, respectively. In the presentation, the bank dishonoured those cheques. However, on 15. 1. 2000, the accused-respondent gave a sum of rs. 45,000/- in cash to the appellant complainant and for rest amount, two cheques for Rs. 60,000/- each were given to the appellant-complainant but on presentation, those cheques could not be honoured because of closure of bank account by the accused-respondent. The appellant-claimant served a registered notice dated 24. 3. 2000 through his advocate, which was returned with the endorsement that despite various attempts the accused-respondent was not found available. The learned Trial Court, after hearing the parties, vide judgment dated 31. 1. 2002, allowed the complaint, convicted the accused-respondent for the offence under Sec. 138 of the Act and sentenced him to the simple imprisonment for one year and a fine of rs. 1,60,000/- and in default of payment thereof further to undergo one month's simple imprisonment. Being aggrieved and dissatisfied by the judgment dated 31. 1. 2002 passed by the Trial Court, the accused-respondent preferred an appeal before the learned lower appellate Court, which has been allowed vide impugned judgment dated 27. 8. 2002. Hence this leave to appeal.

(3.) I have heard learned counsel for the parties and perused the judgments passed by the Courts below as well as the record.