( 1 ) THIS is an appeal filed against the order of acquittal, dated 10. 07. 2000 recorded by the Special Judicial First Class magistrate (Mobile), Nellore in C. C. No. 52 of 2000. The appellant herein is the complainant and the first respondent herein is the accused before the Court below and therefore for the purpose of convenience, the parties to this appeal will hereinafter be referred in the judgment as complainant and accused.

( 2 ) THE relevant facts in brief are as follows: the complainant is the Company M. G. Brothers Auto mobiles Private Limited engaged in selling TATA vehicles i. e. trucks and spare parts and also engaged in effecting the repairs. One Sk. Mabu Khan, Assistant Works Manager in the said Company filed private complaint against the accused styling himself as the representative of the said Company. In the said complaint, it is alleged that the accused used to purchase vehicles from the complainant company on credit basis and likewise the complainant purchased four tippers from the complainant company out of which two vehicles were delivered on 21. 11. 1994 for Rs. 11,03,782. 60 ps. and the other two vehicles were delivered on 22. 11. 1994 and the accused paid almost all the amounts except the balance of rs. 1,32,989. 10 ps. and towards the said balance the accused issued cheque for an amount of Rs. 1,00,000/- on 20. 11. 1995 and when the same was presented before the bank it was dishonoured with an endorsement payment stopped by the drawer on 23. 02. 1996. Subsequent to the dishonour of the cheque the complainant company issued notice on 08. 03. 1996, which was duly served on the accused, and even after receipt of the notice, the accused has not paid the amount and hence the accused committed an offence punishable under Section 138 of the Negotiable Instruments Act (for short the Act ).

( 3 ) ON the said allegations, the learned Magistrate took the case on file and issued process to the accused and after his appearance furnished all copies of documents proposed to be relied on by the complainant and examined the accused under section 251 Cr. P. C. The accused pleaded not guilty of the offence punishable under Section 138 of the Negotiable instruments Act and claimed to be tried. The learned magistrate conducted the trial during which one G. V. Kumar dattu, Assistant Works Manager of the Complainant Company was examined as PW-1 and one P. S. A. Khan, Accounts manager was examined as PW-2 and Exs:p-1 to P-5 were marked on behalf of the complainant company. After the prosecution evidence was over, the learned Magistrate examined the accused under Section 313 Cr. P. C. wherein the accused stated that it is true that he purchased four tippers from the complainant company and also true that he issued cheque for Rs. 1,00,000/- in favour of the company but out of the four tippers purchased by him two tippers became defective which required repairs and that he informed orally and also in writing the Managing Director, Manager and the Sales Manager of the Company not to present the cheque in the bank. The accused did not examine any witness on his behalf nor did he file any documents.

( 4 ) CONSIDERING the evidence adduced on behalf of the prosecution and also the statement made by the accused during the course of 313 Cr. P. C. examination the learned magistrate found that there is variation in the evidence of pws. 1 and 2 regarding the amounts paid by the accused and the sale transaction of four tippers. The learned Magistrate further found that PW-2 admitted that one of the four tippers containing Wipro Lifts was returned and still it remained with the complainant company. The learned Magistrate observed that the complainant did not come forward with clear facts and material regarding the transaction between the accused and the complainant and that PWs. 1 and 2 stated that they were not present at the time when the transactions between the accused and the complainant took place and that in view of lack of suf

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