By this appeal, the appellant (original camplainant) challenged order in Camplaint Case No. SCC 4002/2005, which was decided by learned JMFC, Rajura, acquitting the accused Bhauraa Nanaji Chide of offence punishable under Section 138 of Negatiable Instruments Act. The appellant have challenged validity and legality of the impugned judgment and order an the ground that, the findings recorded by learned JMFC were contrary to the evidence an record. The learned JMFC failed to, notice that, the fact regarding knowledge of the complainant regarding dishonour of the cheque in question was specifically mentioned in the demand notice and the same was never disputed by the accused. It is contended that, the complainant had duly proved legally enforceable liability. According to the complainant, the cheque bearing No. 0086015, dated 26/11/2004, in the sum of Rs. 34,000/- drawn upon the Bank of India, Rajura, was presented to USO Bank, Ballarpur an 19/ 04/2005. The Bank by intimatian memo dated 18/05/2005 infarmed the fact of dishonour of cheque an account of insufficient funds in the account of accused. Thus, the cheque in question was returned to the complainant along with intimation of dishonour an 23/05/2005.Since the cheque was returned due to. dishonour thereof, the complainant issued notice of demand dated 2l/06/2005 to the accused demanding payment of the amount of cheque within 15 days. The notice was received by the accused on 22/06/2005, but despite sufficient time granted for the accused to make payment, the accused failed to pay, and therefore, the complainant had no other option but to lodge complaint under Section 138 of the Negotiable Instruments Act.

2. At trial, the learned Trial Magistrate, Rajura, had accepted evidence of the complainant on affidavit dated 28/07/2006, on the basis of which and after further examination-in-chief on 25/08/2006, the accused was required to cross-examine the complainant on 07/12/2007. The accused had also entered in the witness box in support of his defence and was cross-examined. Thus, after the evidence was recorded, learned Trial Magistrate by the impugned judgment and order dated 08/04/2008, acquitted the accused of the offence punishable under Section 138 of the Negotiable Instruments Act.

3. The learned advocate for the complainant submitted that the complainant had succeeded to establish the fact, that accused had issued a cheque bearing no. 0086015, dated 26/11/2004, in the sum of Rs. 34,000/- which was drawn from the Bank of India, Rajura Branch in favour of the complainant towards discharge of Legally enforceable debt of liability. It is submitted that, the complainant also established the fact that, a cheque was presented to his banker i.e. UCO Bank, Ballarpur, for encashment within prescribed validity period and the fact that cheque was returned dishonoured for reason “funds insufficient” in the account of accused. However, learned Trial Magistrate held that, the complainant did not prove the fact that. complainant had issued a notice to the accused demanding the cheque amount within prescribed period from the date of receipt of the intimation memo regarding dishonour of cheque and thereby held that offence punishable under Section 138 of the Negotiable Instruments Act was not made out against the respondent-accused.

4. It is grievance of the appellant (complainant) that, in the evidence before the Court the complainant had specifically stated in his affidavit that the dishonoured cheque was returned to the complainant on 23/05/2005 with remark" insufficient funds" in the account of accused and UCO Bank, Ballarpur, had returned the intimation memo from the Bank of India along with dishonoured cheque, and this specific evidence in the affidavit of the complainant was not challenged by the accused despite the fact that the cheque (Exh.24), cheque return memo of UCO Bank (Exh.25), return memo of Bank of India (Exh. 26) were produced before the learned Trial Magistrate al