P.C.:

1. The applicant- orig. complainant has filed this application for leave to file appeal against the judgment and order dated 26th February, 2007 passed by the learned J.M.F.C. Phaltan in S.C.C. No.449 of 2002. By the said judgment and order, the learned Magistrate acquitted respondent - orig. accused of the offence under Section of 138 of N.I.Act.

2. The case of the complainant is that he had given a contract to the accused for construction work. However, the accused did not complete the construction as per the contract hence the accused had to refund the amount of expenses of Rs.58,000/-. In respect of the said amount of Rs.58,000/-cheque in question came to be issued by the accused. As the cheque was not honoured, complaint came to be filed.

3. I have heard the learned Counsel for the applicant-Orig.complainant and the learned Counsel for respondent No.1-orig.accused. Perused the judgment and order of the learned Magistrate as well as the evidence which has been annexed.

4. Thelearned Magistrate has acquitted the respondent No.1-orig.accused on two grounds viz. firstly on the ground that there is no material to show that there is any legally enforceable liability and secondly that the notice was not served.

5. The learned Counsel for the applicant has placed reliance on the decision of the Supreme Court in the case of K.N. Beena Vs. Muniyappan & Anr. reported in (2001) 8 SCC 458). The learned Counsel has placed reliance on the observations in para-6 thereof wherein it is held that presumption arises under Sections 118 and 139 of the N.I. Act and unless the contrary is proved, it is to be presumed that the negotiable instrument has been made or drawn for consideration. However, in the very same judgment it is further observed that this presumption is rebuttable. In the present case, from the evidence on record, which will be discussed below, it is seen that it has not been brought on record that any legally enforceable liability arose. Moreover, as observed earlier, the learned Magistrate has acquitted the accused not only on the ground of no legally enforceable liability, but, also on another ground.

6. As far as the first ground, i.e. there is no material to show that there is any legally enforceable liability is concerned, it is seen that the agreement is for Rs.4,25,000/-. As per the agreement the construction work was to be completed by 30th June, 2002. The payment receipt dated 21.3.2002 shows that the first instalment of advance of Rs.40,000/- was received. On 3.4.2002 Rs.10,000/- and Rs.50,000/- was paid. Thereafter on 8.4.2002 payment of Rs.25,000/- was made and on 27.4.2002 payment of Rs.1,55,000/- was made. Thus, the amount received by the accused was Rs.2,80,000/-, on the contrary the agreement is for much larger amount i.e. Rs.4,25,000/-. The complainant has not brought on record the evidence regarding cost of the construction, stage of construction or at what stage the accused had stopped the construction and what was due from the accused as per the stage of construction. Thus looking to the evidence, it cannot be said that the complainant has proved that the cheque was issued in respect of any legally enforceable liability.

7. As far as the second ground is concerned i.e. relating to notice not being served, the complainant has stated that he issued notice (Exh.52) to the accused and it was served on the accused. This fact is denied by the accused. The envelop of the notice is at Exh.47. On the said envelop the address is mentioned as ‘Bhondvasti near Ambamala at Post Sakharwadi taluka Phaltan district Satara’. On the said envelop at back side, the remarks were put by the postal authority that the intimation was given and not claimed hence returned. The accused has raised objection that the address mentioned on the said envelop is incorrect. The complainant in his cross examination admitted that the accused is residing at Murum, taluka Phaltan. He has issued the notice to the accused on th