C.V. Bhadang, J.

This is an appeal, by the complainant, against acquittal of the respondent no. 1, from an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (Act, for short).

2. The appellant was in service of Central Bank of India and has since retired. The respondent no. 1 is said to be a relative of the appellant. The appellant is running a business of hardware, under the name and style as "M/s Sim Enterprises", which is a proprietorship concern. According to the appellant, the respondent no. 1 was in the business of trading iron ore.

3. It was the material case that on account of their close relationship, the appellant had advanced to the respondent no. 1, an amount of Rs.6,00,000/- as a hand loan, out of which Rs.1, 50, 000/- was given by way of a Demand Draft and the remaining amount of Rs.4, 50, 000/- was paid in cash. The appellant claims that the entire amount was out of the retiral dues received by the appellant. Admittedly, there is no document which evidences that the appellant had given Rs.4, 50, 000/- to the respondent no. 1. It was contended that towards re-payment of the hand loan, the respondent no. 1, issued a cheque dated 19.05.2008, drawn on his account with Syndicate Bank, Sanquelim Branch, which got dishonoured on presentation. The appellant issued a statutory notice on 30.05.2008, which was neither replied nor complied with by the respondent no. 1. This led the appellant to file a complaint under Section 138 of the Act. The appellant examined himself and produced the subject cheque along with the cheque return memo and the copy of the legal notice and the A/D card.

4. The learned Magistrate by judgment and order dated 03.05.2011, convicted the respondent no. 1 for the offence punishable under Section 138 of the Act and sentenced him to undergo simple imprisonment for six months and to pay fine of Rs.10, 000/- and in default to undergo simple imprisonment for two months, as also compensation of Rs.6, 00, 000/-. Feeling aggrieved, the respondent no. 1, challenged the same in Criminal Appeal No. 40/2011, before the learned Sessions Judge. The learned Sessions Judge by judgment and order dated 18.02.2013 allowed the appeal and acquitted the respondent no. 1 of the offence punishable under Section 138 of the Act. Feeling aggrieved, the appellant is before this Court.

5. I have heard Shri Dessai, the learned Counsel for the appellant. None appears for the respondent no. 1. With the assistance of the learned Counsel for the appellant, I have gone through the record and the impugned judgment of the learned Sessions Judge.

6. It is submitted by Shri Dessai, the learned Counsel for the appellant that the respondent no. 1, neither issued any reply nor led any evidence in defence. It is submitted that once, the signature on the cheque was not disputed, there is a presumption, which would arise under Section 118 read with Section 139 of the Act, which has not been rebutted by the respondent no. 1. He submits that thus, the learned Sessions Judge was in error in acquitting the respondent no. 1. On behalf of the appellant, reliance is placed on the decision of this Court, in the case of Krishna P. Morajkar Vs. Joe Domnic Ferrao & Another, (2014) 2 BCR(Cri) 738 and Yavatmal District Mahesh Urban Credit Co-op. Society Ltd. Vs. Narayanrao Ukandrao Paikrao, (2011) AllMR(Cri) 2769.

Except this, there are no other contentions raised.

7. I have carefully considered the circumstances and the submissions made. The case made out by the appellant is that he was working in Central Bank of India and has since retired and that he had paid Rs.6, 00, 000/- to the respondent no. 1, out of which, a substantial amount i.e. Rs.4, 50, 000/- were paid in cash, out of the retirement dues. Admittedly, there is no document got executed at the time when the said amount was advanced. The notice as well as the complaint is silent about the date on which the amount is allegedly advanced to the respondent no. 1. Even du