JUDGMENT - AGUIAR A.S., J.:---The matter was taken up for final hearing as notices were issued to the respondents that the matter would be taken up for final hearing at the admission stage despite the R P not being called for. The parties have produced, by consent the copies of the R P including the testimony of the witnesses on which they have relied.

2.This is an appeal from the judgment and order dated 10th February, 2003 passed by the Vth Joint Judicial Magistrate, First Class, Thane acquitting the accused Suresh S. Shetty of the offence punishable under section 138 of the Negotiable Instruments Act holding that the complainant Girish Shetty had failed to prove his case beyond reasonable doubt.

3.Briefly, the case of the complainant is that the accused who is the proprietor of the Hotel Sairaj at Mulund had approached the complainant and requested him for a friendly loan of Rupees Three Lakhs. The complainant have the said friendly loan of Rupees Three Lakhs to the accused in cash and in repayment of the said loan amount the accused issued Cheque No. 142399 dated 19-11-1998 drawn on Dena Bank, Mulund for Rupees Three Lakhs in favour of the complainant. The complainant deposited the said cheque with his bankers Vijaya Bank but the same was dishonoured and returned with the endorsement "payment stopped". He was informed of this by bank memo dated 23-11-1988. Thereupon, the complainant issued a notice through his Advocate calling upon the accused to pay the sum of Rupees Three Lakhs within 15 days from the date of receipt of the notice. The accused, however, despite receiving the said notice failed to comply with the same and on the contrary sent a reply to the complainant alleging that the said cheque was stolen by the complainant. Thereupon, the complaint came to be filed before the said Judicial Magistrate under section 138 of the Negotiable Instruments Act. The charge was framed against the accused on 21-11-2002, Exh. 60. The charge was read over and explained to the accused. He pleaded not guilty and claimed to be tried. After recording of evidence statement of the accused under section 313 Cri.P.C. was recorded (Exh. 65). The defence of the accused is one of total denial. However, the accused has led no evidence in his defence.

4.The complainant in support of his complaint has examined himself as P.W. 1 (Exh. 37) and had deposed to the facts stated in his complaint. He was cross-examined by the defence at length. In his cross-examination, various suggestions regarding his income were asked. He was also asked details of the alleged loan given by him to the accused. Questions were also put about the time when the accused gave the complainant the cheque in repayment of the loan amount. The complainant in his examination in chief had stated that the cheque was returned by the bankers for the reason "not arranged for". The complainant also admitted in his cross-examination that he has not sent any rejoinder to the reply of the accused to the notice under section 138 of the Negotiable Instruments Act.

5.The complainant has also examined P.W. 2 as Sudhir Bagaitake an employee of the bank who proved bank memo dated 23-11-1998. Exh. 54, P.W. 2 has also stated that Exh. 38 is his banks cheque and that by memo Exh. 54 they informed the Vijaya Bank Thane that the cheque was dishonoured due to remark "stop payment". P.W. 2 also produced the statement of Current Account No. 126038 of the accused for the period 2-11-1999 to 16-11-1999 and has stated that no amount to the extent of Rupee Three Lakhs was credit to the said account of accused during the said period. The bank statement is on record as Exh. 53.

6.The complainant also examined P.W. 3 Padmanabhan Shetty uncle of the complainant, Exh. 59. However, on the application of Advocate for the accused and with the consent of the complainants Advocate the evidence of P.W. 3 was excluded.

7.It is the case of the complainant that the accused has admitted that cheque drawn on Dena Bank, Mu

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