1. Heard respective learned counsel for the parties.

2. With the consent of the learned counsel for the parties taken up for final hearing.

3. Parties hereinafter are referred to as, “complainant” and “accused”.

4. It is the contention of the complainant that he was carrying on the business of Bajaj Industries at Majalgaon and the accused is carrying on the business of hotel and they had friendly relations with each other.

5. The accused was in need of the amount of Rs. Six Lacs, and therefore, he requested the complainant therefor. Since the relations between the complainant and the accused were friendly and since the accused undertook to give post dated cheque of two months, the complainant gave hand loan of Rs. Six Lacs to the accused on 20.9.2005 and the accused also issued cheque of Rs. Six Lacs, dated 21.11.2005 drawn on Rajashri Shahu Cooperative Bank, Beed, Branch Majalgaon, to the complainant towards repayment of the said amount. Accordingly, the complainant presented the said cheque for encashment purpose on 16.3.2006. However, the said cheque was dishonoured and returned unpaid with the cheque return memo. Hence, the complainant issued the demand notice to the accused and demanded the money/amount of the said cheque from the accused. However,the accused did not pay the said cheque amount to the complainant. Hence, the complainant filed the complaint against the accused under Section 138 of the Negotiable Instruments Act, which was numbered as Criminal Case No. 445 of 2006.

6. The accused appeared in the said case and the compromise took place between the parties therein. In pursuance of the said compromise, the accused issued cheque No. 051734, dated 1.10.2006 for Rs. Six Lacs to the complainant and the said cheque was recorded in the compromise in Criminal Case No. 445 of 2006 and the said case was disposed of in view of the said compromise.

7. Thereafter the accused requested the complainant to present the said cheque, which was tendered by him in the afore said compromise after 5th December, 2006. The complainant waited as per the request of the accused and presented the said cheque for encashment purpose after the said time limit. However, the said cheque was also dishonoured and returned unpaid with the bank return memo on 6.12.2006. Hence, the complainant issued notice to the accused by R.P.A.D. on 3.1.2007 and demanded money/amount of the said cheque from him. However, the accused did not claim the said notice and the said notice was returned unclaimed to the complainant on 15.1.2007. The accused did not repay the amount/money of the said cheque as per the said notice, and therefore, the complainant again filed the complaint against the accused under Section 138 of the Negotiable Instruments Act on 26.2.2007, which was numbered as S.C.C. No.265 of 2007 before the Additional Chief Judicial Magistrate, Majalgaon.

8. It appears that the accused appeared in the said case and the record discloses that his plea was recorded on 6.3.2008 and the accused pleaded not guilty and thereafter the said case was posted for recording of evidence.

9. However, it appears that on 30.9.2009, the complainant remained absent before the learned Trial Court, although the said case was fixed for recording of evidence, and hence, the said complaint came to be dismissed and the accused was acquitted by the learned Trial Court on the said date by order, dated 30.9.2009. Hence, being aggrieved and dissatisfied by the said order, dated 30.9.2009, dismissing the complaint of the complainant and acquitting the accused under Section 138 of the Negotiable Instruments Act, the complainant has preferred the present appeal challenging the same and prayed for quashment thereof.

10. Learned counsel for the complainant submitted that the complainant was present before the court on the earlier day i.e. 7.9.2009, as well as the accused was also present on the said date and he preferred application for cancellation of warrant which was i