By means of this Appeal, the appellant has challenged the validity, legality and correctness of the judgment and order dated 23rd July, 2008 passed by the learned Judicial Magistrate, First Class (Special Court) 138 of the Negotiable Instruments Act, Nagpur, whereby the respondent/accused Mr Rakesh Wahane /Rajesh Wahane (Rakesh Waney) was acquitted of the offence punishable under section 138 of the Negotiable Instruments Act (hereinafter referred to as “the N.I. Act”). It is the grievance of the learned Advocate for the appellant that despite service upon respondent sole in respect of this appeal, he chose to remain absent. None appeared on his behalf.

2. It is contended that the appellant (complainant) had agreed to purchase a plot from Bezonbagh Pragatishil Kamgar Griha Nirman Maryadit Sahakari Sanstha Maryadit, Nagpur and the respondent/accused represented himself as Secretary of the said society. The appellant/ complainant had purchased Plot No. 3 for a total consideration of Rs.1,50,000/-. Her relative one Mr N.Dharmerao had also agreed to purchase one plot in the said society. The complainant had paid the entire consideration to the accused on 24.8.2001 after she was made member of the society on 12.4.2001. The accused had also asked a sum of Rs.25,000/- towards registration charges, stamp duty and miscellaneous expenses but no receipt was issued against the amounts collected. While complainant was eager to construct her plot and perform ground-breaking ceremony, when she went there she was not allowed to do the same. As she never wanted to enter into litigation, she approached the accused and who promised her that she will get back her money. After repeated requests, the respondent-accused had issued a cheque in the sum of Rs.1,25,000/- vide cheque No.198652 drawn on Oriental Bank of Commerce, Nagpur. She presented the cheque for encashment on or about 23.7.2003 which returned dishonored on 26.7.2003. Demand notice was sent to the accused on 12.8.2003 by RPAD and also under certificate of posting. However, no reply was sent to the demand notice nor any payment was made as mentioned in the cheque.

3. It is the main grievance of the appellant that the trial Magistrate grievously erred in framing proper points for determination or issues so as to decide the complaint on merits case in accordance with law. It is the further grievance of the complainant (appellant) that undue importance was given to false pleas of the accused instead of giving priority to the statutory presumptions available under section 139 read with section 118 of the N.I. Act. Thus, the learned trial Magistrate could not apply his mind to the facts of the case as no proper points for determination were framed and consequently miscarriage or failure of justice had occasioned in the trial.

4. The Respondent-accused remained absent. None appeared to represent him.

5. I have considered the contentions in the light of the facts of the case and accusations which were levelled by the complainant. Section 138 of the N.I. Act is couched in the following terms :

“138. Dishonour of cheque for insufficiency, etc. of funds in the account – Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for ( a term which may extended to two years ), or with fine which may extend to twice the amount of the cheque, or with both :

Provided that nothing contained in this section shall apply unless