V.K. Jadhav, J.

Heard.

2. Rule. Rule made returnable forthwith.

3. Being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Aurangabad, dated 22nd September, 2006, in Criminal Revision Application No. 130/2006, the original complainant has preferred this writ petition.

4. Brief facts giving rise to the present writ petition are as follows :

Petitioner original complainant filed private complaint before the Judicial Magistrate First Class, Vaijapur, alleging therein that the respondent-accused is his friend and he was in need of an amount of Rs.70,000/- for payment of private dues and for other purposes. Respondent-accused no. 1 requested him for the said amount in the month of August 2005. Even, respondent-accused had promised petitioner-complainant for repayment of said amount within a month. Thus, petitioner-complainant had paid the amount of Rs.70,000/- to him on 28.08.2005 by accepting cheque of Rs.70,000/- dated 27th September, 2005. However, after presenting said cheque in the bank, it was returned with the endorsement of "insufficient funds" in the account maintained by respondent-accused. It has further alleged in the complaint that thereafter within stipulated time, petitioner-complainant issued legal notice to respondent-accused calling upon him to pay amount under the cheque however, respondent-accused had not bothered to reply said notice. Thus, petitioner-complainant was constrained to file complaint before the Court against accused for the offence punishable under section 138 of the Negotiable Instrument Act.

Learned Judicial Magistrate, First Class, Vaijapur, by order dated 9th March, 2006, after recording the verification statement of the complainant and on perusal of the documents submitted along with complaint, issued process against respondent-accused under section 138 of the Negotiable Instrument Act as the learned Magistrate found sufficient ground to proceed. Being aggrieved by the same, respondent-accused preferred Criminal Revision Application No.130/2006 before the Sessions Court, Aurangabad and, the learned Additional Sessions Judge, Aurangabad, by impugned order dated 22nd September, 2006, allowed the application and set aside the order passed by the Magistrate and discharged respondent-accused from the charge levelled against him. Hence this writ petition.

5. Learned counsel for petitioner submits that the learned Additional Sessions Judge has considered the defence of respondent-accused and accordingly allowed said revision application. Learned counsel submits that respondent-accused has challenged the order of issuance of process passed by the Magistrate and the learned Additional Sessions Judge should have considered said challenge to the limited extent of the order passed by the Magistrate issuing process against accused under section 138 of the Negotiable Instrument Act. Learned counsel submits that even respondent-accused had not bothered to reply the demand notice issued by petitioner-complainant. Respondent-accused has produced before the Additional Sessions Judge the xerox copies of Isar Pavati of the agreement and also xerox copies of the legal notice issued by him to the petitioner-complainant. Learned counsel submits that even though complainant is not subjected to cross examination on the basis of these documents and, even though original documents are not produced before the Court and proved, the learned Additional Sessions Judge has considered said documents and accordingly allowed the revision application. Learned counsel submits that the judgment and order passed by the Additional Sessions Judge is not proper, correct and legal and the same is thus liable to be quashed and set aside.

6. Learned counsel for respondent-accused submits that respondent-accused has challenged the order of issuance of process and accordingly brought to the notice of the learned Additional Sessions Judge the real transaction between the parties in the year 2006. In view