( 1 ) BEING aggrieved by the acquittal of the accused recorded by the learned Judicial Magistrate First Class Court No. 2 Nagpur in complaint case No. 82/1997, the complainant has preferred this appeal.

( 2 ) THE complainant approached the Court of Judicial Magistrate First Class nagpur with a complaint of offence punishable under section 138 of Negotiable instruments Act on the following facts. The complainant and the accused had cordial relations and were acquainted with each other. The complainant therefore wanted to deposit his savings with the accused and accordingly made deposit sum of Rs. 50,000/- on 12-12-1990, Rs. 10,000/- on 4-1-1991, Rs. 28,000/- on 12-2-1991 and Rs. 12,000/- on 5-4-1991,. The complainant was in need of money and, therefore demanded its return in the month of March, 1996. Since the amount deposited with the accused was to bear interest and the accused represented to the complainant that he will be able to refund the amount only in december, 1996, the complainant accepted cheque No. 51719 dated 5-12-1996 issued by the accused for a sum of Rs. 2,22,000/- drawn on Nagpur District central Co-operative Bank Limited, Ramnagar Branch, Nagpur. The complainant presented the cheque in the Bank on around 7-12-1996. By a memo dated 12-12-1996 he was informed that the cheque was dishonoured. The complainant therefore sent a notice to the accused on 16-12-1996 calling upon the accused to pay the amount due under the cheque within 15 days of receipt of the notice. This notice was duly received by the accused on 24-12-1996. Since the accused did not make the payment within stipulated period of 15i days, and on the contrary sent a reply on 3-1-1997 raising false defence, the complainant filed the said criminal complaint before the learned Magistrate.

( 3 ) UPON issuance of process by the learned Magistrate, the accused appeared and pleaded not guilty when the particulars of offence punishable under sections 138 of the Negotiable Instruments Act were explained to him. The complainant examined himself and an Officer of Nagpur District Central Cooperative bank to prove his case. The accused examined said Shri Chandak in defence. It was argued before the learned Magistrate that the amount received by the accused was towards the construction work of Shri Madanlal Chandak, carried out by the accused. The complainant had contracted to construct for madanlal Chandak and had engaged the accused us a Sub-Contractor. It was further alleged that since the accused wanted to take; a loan from United Western bank Mahal Branch, he requested the complainant to be his guarantor. The complainant insisted upon issuance of five blank cheques by way of security for offering himself to be a guarantor to the Bank. These cheques were utilised by the complainant for falsely prosecuting the accused.

( 4 ) THE learned trial Magistrate held that the cheque in question was not proved to have been issued towards debt or legally enforceable liability and, therefore, offence punishable under section 138 of the Negotiable Instruments act was not made out. The learned Magistrate therefore, proceeded to acquit the accused which has resulted in presentation of this appeal.

( 5 ) I have heard both the learned counsel for the appellant/original complainant, the learned counsel for respondent/accused No. 1, as also the learned Additional Public Prosecutor for the State. With the help of learned counsel, I have gone through the entire evidence on record of the trial Court. While the complainant had stated in the complaint that the complainant wanted to deposit his savings with the accused and had therefore, deposited various sums on the dates mentioned in the complaint with the accused, the story given by the complainant in his evidence before the Court was different. He stated before the court that the accused had come to him and demanded money for his business and construction work. Therefore, he gave various sums on different dates aggregating to Rs. 1,0

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