This appeal under Section 378(4) Cr.P.C. upon grant of special leave by this Court, is by the complainant in C.C.No.308/2004 on the file of the Additional C.J.M., Bangalore District, and is directed against the judgment and order dated 23.11.2006 passed by the Presiding Officer, Fast Track Court-II, Bangalore Rural District in Crl.A.No.69/2006, whereby the judgment and order dated 17.5.2006 passed by the learned Magistrate convicting the respondent – accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the N.I. Act’), came to be set aside and the accused was acquitted.

2. The appellant filed a complaint under Section 200 Cr.P.C. r/w Section 142 of the N.I. Act against the respondent – accused inter alia contending that the respondent – accused had borrowed a hand loan of Rs.1,00,000/- in the month of July 2003 and towards discharge of the said hand loan, he issued the cheque bearing No.238109 dated 15.11.2003, drawn on Canara Bank, Kolar and when the said cheque was presented for encashment, the same came to be returned unpaid with Banker’s endorsement “funds insufficient” and in spite of service of legal notice to the respondent – accused on 10.12.2003 as required by law, respondent – accused failed to pay the amount covered under the cheques as such he has committed offence punishable under Section 138 of the N.I. Act.

3. The learned Magistrate before whom the complaint was presented on 9.2.2004, took cognizance of the offence by order dated 9.2.2004 and after recording the sworn statement of the complainant directed registration of the criminal case as per his order dated 11.2.2004 and summons were ordered to be issued to the respondent – accused. Upon service of summons, the accused appeared before the learned Magistrate and pleaded not guilty for the accusations made against him and claimed to be tried. During the trial, the complainant examined himself as PW.1 and was cross-examined. He also got marked Exs.P.1 to P.13.

4. The respondent – accused during his examination under Section 313 Cr.P.C., denied all the incriminating circumstances appearing against him. In defence, he examined himself as DW.1 and also produced Exs.D.1 to D.3. It was the contention of the respondent – accused that the complaint was barred by time as provided by Section 142 of the N.I. Act, therefore, the court has no jurisdiction to take cognizance of the said offence. It was also his contention that the statutory notice was not properly addressed to him, therefore, there was no service of notice on him. He also denied the case of the complainant that he had borrowed a sum of Rs.1,00,000/- and that the cheque in question had been issued for the discharge of the said liability. It was his further defence that he had delivered certain blank cheques to the father-in-law of the complainant as security and one such blank cheque has been misused in the name of the complainant, though the complainant had not lent any money nor the cheque in question had been issued for discharge of debt or other liability to the complainant.

5. When the matter was pending for hearing arguments on merits, it appears, the complainant filed an application under proviso (b) to Section 142 of the N.I. Act seeking condonation of delay in filing the complaint. Though the said application was opposed by the respondent – accused, the learned Magistrate by his order dated 10.4.2006 allowed the said application and condoned the delay and thereafter proceeded to hear further arguments. Ultimately by judgment dated 17.5.2006, the learned Magistrate, held the respondent – accused guilty of the said offence and consequently convicted the respondent – accused for the offence punishable under Section 138 of the N.I. Act and sentenced him to pay fine of Rs.2,00,000/-.

6. Being aggrieved by the said judgment of conviction and order of sentence, the respondent filed appeal before the learned Sessions Judge in Criminal Appeal No.69