JUDGMENT

A.D. Upadhye, J. - Being aggrieved by the Judgment and order dated 30/06/2006 passed by the J.M.F.C. & Special Court of 138 of N. I. Act, Nagpur in Summary Criminal Case No.1062/2002 acquitting the accused of the offence punishable under section 138 of the Negotiable Instruments Act, the appellant - original complainant has preferred this appeal. The respondent Nos.1 and 2 are original accused. The respondent No.3 is State of Maharashtra. The parties are referred by their original status. (Hereinafter appellant is referred as "complainant" and respondents are referred as "accused").

2. During the pendency of the appeal, the legal heirs of the complainant were brought on record.

3. The complainant has contended that he is the resident of Nagpur. The accused No.1 is the Company duly registered under the Companies Act and accused Nos.2 and 3 are their Managing Directo It appears that the name of accused No.3 - Sanjay Hartalkar was deleted, as the complaint was withdrawn against him and he was acquitted.

4. The complainant has contended that the accused Nos.2 and 3 approached to him in the month of January, 1994 and requested for handloan to meet the urgent business dealings. The complainant agreed to give Rs. 60,000/- to them. The complainant has given said amount and the accused have acknowledged the same vide receipt dated 20/01/1994 vide Exh.36. The complainant tried his level best to get back the amount, but in vain. The accused Nos.2 and 3 thereafter issued cheque of Rs. 1,00,000/- on 01/06/2002 towards the payment of loan of Rs. 60,000/- and Rs. 40,000/- towards compensation of loss of interest. The cheque was deposited in the bank of Baroda on 07/10/2002. However, the said cheque was returned back on 09/10/2002 with endorsement "fund insufficient". The complainant, thereafter issued legal notice to all the accused and called upon them to make payment. Notice returned back with endorsement "Not claim". The complainant, therefore, filed the complaint before the J.M.F.C., Nagpur.

5. After issuing process under section 138 of the Negotiable Instruments Act, the accused appeared in the proceeding. The name of accused No.3 - Sanjay Hartalkar was deleted and case was withdrawn against him and he was acquitted as per order passed below Exh.1. The accused No.2 - Vishwas Ladke appeared in the proceeding and particulars of offence were framed against him vide Exh.27. The contents of offence were read over to him in vernacular. He pleaded not guilty.

6. After recording the evidence in the matter and hearing both the sides, learned Magistrate has acquitted the accused Nos.1 and 2 of the offence punishable under section 138 of the Negotiable Instruments Act by its order dated 30/06/2006. The said order is impugned in the present appeal.

7. I have heard the learned counsel for the parties at length.

8. Shri Khapre, learned counsel for the complainant has submitted that the cheque issued by the accused is admitted and also signature on it, is also admitted. The defence of the accused that the cheque is of the year 2002 and the date of loan is 20/01/1994 and therefore, on the ground of time barred debts, they were acquitted. He further submitted that if cheque is given by the accused, the liability is enforceable as they acknowledged the loan and therefore, there is no question of time barred debt. The learned counsel for the accused however, submitted that the blank cheque was given for security of loan amount of Rs. 60,000/-. The amount of Rs. 60,000/- was already paid by the accused No.3 who is a partner of the Company. There is no liability of the accused to pay the loan amount. The complaint filed by the accused, thus, deserves to be dismissed. The appeal, therefore, be dismissed.

9. Considering the submissions of the respective sides and evidence on record, it appears that as per the receipt / acknowledgment at Exh.36, Rs. 60,000/was received by the Directors of the Company from the complainant Krishnarao Pitale. The date of