This is an appeal against acquittal filed by the original complainant. By the impugned judgment and order dated 30-03-2016, the Court of Judicial Magistrate First Class, Nagpur (trial Court) passed in Summary Criminal Case No.16722 of 2014, has acquitted the respondent (accused) for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the said Act').

2. The case of the appellant was that she and the respondent were neighbours and that they had family relations. The appellant had lent amounts towards hand loan to the respondent for tuition fees of her daughter and some other expenses from 04-02-2013 to 18-07-2013 and that a total amount of Rs.1,63,000/had been advanced to the respondent. According to the appellant, after much persuasion, the respondent had issued a cheque dated 11-03-2014 for an amount of Rs. 1,63,000/towards the repayment of the said loan.

3. But, when the cheque was presented for encashment on 26-03-2014, it was dishonored for the reason “insufficient funds”. This fact was informed by the appellant to the respondent, who asked the appellant to again present the cheque for encashment after one month and she assured that the cheque would be encashed. Accordingly, on 12-05-2004, the appellant again presented the cheque for encashment. But, it was dishonoured once again for the same reason. Consequently, the appellant issued demand notice to the respondent. In this situation, the appellant was constrained to file complaint under Section 138 of the said Act, against the said respondent.

4. In support of her case, the appellant placed on record documents in the form of disputed cheque (Exhibit-21), demand notice (Exhibit-22), postal acknowledgment (Exhibit-23) and statement of the appellant recorded by the Police (Exhibit-24). The appellant also placed on record a computer generated copy of the memo issued by the bank when the cheque was dishonoured along with list of documents at Exhibit-20. But, since the said memo did not bear official mark or signature of the bank officer, it was not exhibited during evidence. The appellant entered into the witness box, in support of her case.

5. On the other hand, the respondent did not lead any evidence in support of her defence. She relied on the cross examination of the appellant to demonstrate that the cheque in question was given to certain persons from a “Bachat Gat” for obtaining loan. However, there was no direct suggestion made to the appellant in cross examination that the said cheque was given by the respondent to any of the said persons. It could also not be brought on record by the respondent that the appellant had any relations with those persons to whom the cheque was allegedly handed over. On the basis of the oral and documentary evidence, the trial Court found that although the appellant had been able to prove that the cheque in question pertained to discharge of legal debt i.e. repayment of hand loan, it was found that the appellant had failed to prove that the cheque had been dishonoured and consequently notice issued to the respondent was within the statutory period specified under Section 138 of the aforesaid Act. On this basis, the trial Court found that the complaint of the appellant was liable to be dismissed. As a result, the respondent stood acquitted by the impugned judgment and order.

6. Mrs. R.D. Raskar, learned Counsel appearing on behalf of the appellant, submitted that when the trial Court had returned positive findings in favour of the appellant on the question of the appellant having advanced hand loan to the respondent, in respect of repayment of which the cheque in question had been issued, a grave error had been committed by the trial Court in acquitting the respondent. It was submitted that while the appellant had placed on record documentary and oral evidence in support of her case, the respondent had failed to enter the witness box and she had not examined a single witness in support of her defen