1. Heard learned respective Counsel for the parties.

2. This is an appeal preferred by the appellant (original complainant) challenging the judgment and order of acquittal dated 16th August 2000, rendered by the learned Judicial Magistrate (F.C.), Court No.3, Ahmednagar, in Summary Criminal Case No. 1093/1998, thereby acquitting the respondent (original accused) for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

3. Parties are hereinafter referred to as per their original status i.e. complainant and accused.

4. The factual matrix of the matter is as mentioned below:

The appellant (original complainant), namely, Navneetdas s/o. Narayandas Barshikar, is resident of Ahmednagar and carries on business there, whereas the respondent (original accused), namely, Bacchubhai s/o. Mulji Tanna, is resident of Mumbai, and is proprietor of B.M.T. Industries. It is alleged that the accused purchased goods worth Rs. 2,00,000/-from the complainant on credit, on 11-6-1996, and issued cheque bearing No. 235406 of Rs. 50,000/- to the complainant on 31-1-1998 towards part payment, and the accused assured that the said cheque would be honoured. Accordingly, the complainant presented the said cheque on 4-2-1998 for encashment purpose in Nagar Urban Cooperative Bank, Ahmednagar. However, the said cheque was dishonoured and was returned unpaid by the said Bank on 11-2-1998, with the endorsement 'insufficient funds'. Hence, the complainant immediately sent a letter to the accused on 11-2-1998 by courier. It is alleged that on receipt of the said letter, accused requested the complainant to present the said cheque once again with the assurance that the said cheque would be honoured definitely. Relying upon the said assurance, the complainant again presented the said cheque on 17-2-1998 for encashment purpose. However, the said cheque was again dishonoured and returned unpaid due to 'insufficient funds'. The information about dishonour of the said cheque was received by the complainant on 23-2-1998. After receipt of the said information from the Bank, the complainant issued notice to the accused on 26-2-1998, through Advocate, demanding the cheque amount. The Postal Department gave information of the said notice to the accused on 3-3-1998, but still the accused failed to make payment of the said cheque amount to the complainant, and hence, it is alleged that the accused deceived the complainant deliberately and intentionally, and also committed offence punishable under Section 138 of the Negotiable Instruments Act, 1881. Hence, the complainant filed complaint on 25-3-1998, against the accused under Section 138 of the Negotiable Instruments Act. The verification of the complaint was recorded and process came to be issued against the accused on 16-7-1998. The accused appeared therein and his plea was recorded on 28-6-1999, and the accused pleaded not guilty and claimed to be tried.

5. To substantiate the case of the complainant, the complainant examined as many as three witnesses, namely :

(1) PW 1 Navnitdas s/o. Narayandas Barshikar - Complainant himself.

(2) PW 2 Madhusudan Rao Keli - Deputy Manager of Vysya Bank, Mumbai, and

(3) PW 3 Subhash Kachardas Luniya - Employee of Nagar Urban Cooperative Bank, Ahmednagar.

Moreover, the complainant also produced documentary evidence, such as, disputed cheque in question, at Exhibit 20; letter issued by the complainant to Shri Ashishbhai i.e. son of the accused, Exhibit 21; letter issued by the complainant to Shri Ashishbhai, Exhibit 22; copy of the notice Exhibit 23; memos issued by the Bank, Exhibits 38 and 39; and delivery challan Exhibit 24.

6. However, the accused neither examined himself nor examined any defence witness, but put forth his defence through cross examination of the complainant and his witnesses, and also through his statement recorded under Section 313 of the Code of Criminal Procedure, and also produced some documents on record. The accused sta