The appellant had prosecuted respondent No. 1 herein on the allegation of having committed an offence punishable u/s 138 of the Negotiable Instruments Act. After holding a trial, the learned Metropolitan Magistrate's 44th Court, Andheri, Mumbai, came to the conclusion that the case against respondent No. 1 was not proved and, therefore, passed an order of acquittal. The appellant, being aggrieved by the said order of acquittal has filed the present appeal after obtaining leave of this court.

2. The appellant shall, hereinafter, be referred to as “the complainant” and respondent No. 1 as “the accused”, for the sake of convenience and clarity.

3. The appeal was taken up for final hearing expeditiously at the instance of the complainant He being a senior citizen, insisted on an expeditious disposal of the appeal.

4. I have heard Mr. Sachin Dhakephalkar, the learned counsel for the appellant – complainant. Nobody appears for respondent No. 1 – accused. No submissions have been made by the learned APP on behalf of the State of Maharashtra.

5. I have gone through the entire evidence adduced during the trial. I have also gone through the judgment and order.

6. The substance of the complaint filed by the complainant was that the accused had a friendly relationship with the complainant and that the accused had an 5/8/2001 approached the complainant for a financial help in the sum of Rs.98,000/-. The said amount was paid by the complainant on 8/8/2001, as a friendly loan, which the accused had promised to repay on or before 8/11/2001. That, the accused had executed a Demand Promissory Note dated 8/8/2001, for the sum of Rs.98,000/-, and had also given a cheque for the sum of Rs.98,000/- post dated as 8/11/2001, which was the date of repayment of the said loan. The loan is said to have been paid on 8/8/2001. That the said cheque was deposited with his bankers by the complainant on 12/11/2001 and it was dishonoured with the remark 'Insufficient Funds”. The complainant thereafter gave a notice to the accused calling upon him to pay the amount of the said cheque but the accused did not make the payment as called for. It is under these circumstances that the complaint came to be filed against the accused.

7. During the trial, the complainant examined himself as a witness. The accused also examined himself as a defence witness. Certain documents were tendered in evidence by both the parties i.e. by the complainant as well as by the accused.

8. The case of the complainant before the trial court was categorical, namely, that the demand for a friendly loan was made on 5/8/2001; that the said loan was given on 8/8/2001 with the understanding that it was to be repaid within a period of three months and that a demand promissory note was executed by the accused on 8/8/2001. The case of the complainant is that it is at that time that the accused gave a post dated cheque dated as 8/11/2001 for the purpose of repaying the loan amount.

9. The complainant gave evidence consistently with his case. In the cross-examination, he said that he knew the accused for 12 to 13 years. It was suggested to him that an advertisement had been given by him in local newspaper to provide loans to bank employees to which he replied 'that he could not say about it'. It was suggested to the complainant that he was charging a penalty of Rs.100/- per day for delayed payment which suggestion was denied by him.

10. The accused came up with a specific case that he had obtained Rs.40,000/- from the complainant on which the complainant was charging interest @ 10%. The accused also categorically stated during his examination u/s 313 of the Code that penalty of Rs.100/- per day was being charged on the delayed payments. According to the accused, son of the complainant had once assaulted him (the accused) as the accused could not pay the interest.

11. In his evidence the accused stated that in the year 1999 there was an advertisement in daily newspaper 'Sandhyakal' c