The central legal point established in the judgment is the requirement for the complainant to prove the essential elements of the offence under Section 138 of the N.I. Act, including the existence of a legally enforceable debt and the dishonour of the cheque.

JUDGMENT

Prakash D. Naik, J. - This appeal is preferred by the State of Maharashtra at the instance of Dairy Manager, Government Milk Scheme, Solapur under Section 378(3) of the Code of Criminal Procedure challenging the judgment and order dated 18th May 2006 passed by the Judicial Magistrate, First Class, Solapur in Summary Trial Case No.4999 of 2003.

2. The respondent was tried for the offence punishable under Section 138 of Negotiable Instruments act, 1881 (`N.I.act' for short). Learned Magistrate acquitted the respondent. The appellant is aggrieved by the judgment of acquittal.

3. The case of the complainant is as follows :

The complainant is in the business of supplying milk to the customers through its agents. The accused is agent of complainant i.e. Government Milk Dairy and he was collecting milk from the said dairy for the purposes of selling it. There were dues of Rs.1,00,000/-from the accused. He was informed about the dues by the dairy manager. The accused gave cheque bearing No.118039 dated 10th March 2003 for Rs.1,00,000/- drawn on Janata Sahakari Bank Limited, Solapur. The complainant deposited the cheque for clearance with State Bank of India, Treasury Branch, Solapur. The cheque was returned unpaid due to insufficiency of funds in the account of accused. On 10th april 2003 notice was issued to the accused by complainant demanding amount of cheque. Since there was a failure by accused to make the payment within stipulated time, complaint was filed under Section 138 of N.I.act.

4. Learned Magistrate issued process against accused for the offence under Section 138 of N.I.act. The summons was received by accused. Plea of the accused was recorded. The accused pleaded not guilty.

5. Vide judgment and order dated 18th May 2006 the Trial Court acquitted the respondent of the offence under Section 138 of N.I.act.

6. The learned aPP appearing for the appellant-State submitted that the Trial Court has committed an error in acquitting the accused. The offence was proved. The liability was proved, issuance of demand notice was proved. Notice was served on accused. The Trial Court has not appreciated the evidence in proper perspective. The presumption under Section 139 of N.I.act was overlooked. The Court has committed an error in holding that prosecution has failed to prove that accused had issued cheque dated 10th March 2003 for amount of Rs.1,00,000/- towards discharge of liability. Documents were exhibited in evidence. It was established that cheque was issued in discharge of legally enforceable debt. The Trial Court has committed an error while acquitting the accused. The witnesses examined by the complainant had established all the required ingredients to constitute offence under Section 138 of N.I.act.

7. Learned counsel for respondent Mr.S.a.Kumbhakoni submitted that basic requirement to establish commission of offence u/s.138 of N.I.act was not established. The demand notice was not proved. There is no reason to set aside the order of acquittal.

8. He relied upon decision of this Court in case of State of Maharashtra Vs. Kalpak Bhaskar Gadhave 2009-aLL M.R. (Cri.)-714 and Vandana akhilesh Pandey Vs. abhilasha anil Pande 2 2018(4)-Bom.C.R. (Cri.)-774.

9. I have perused the impugned judgment of Trial Court, the oral and documentary evidence. On scrutiny of evidence and the reasons assigned by the Trial Court, I do not find any reason to disturb the findings of Trial Court and the order of acquittal. The judgment is supported by cogent reasons which indicate that the Court has appreciated the evidence.

10. PW-1 Prakash Ramchandra Sontakke has deposed that he is the Dairy Manager, Government Milk Scheme, Solapur. The complainant is dairy manager of government milk scheme. The accused is an agent of complainant. He was collecting about 200- 300 ltrs of milk for sale purpose. There were dues of Rs.1,00,000/-. The accused gave cheque of Rs.1,00,000/- dated 10th March 2003 drawn on Janata Sahakari Bank Limited bearing cheque No.11803