JUDGMENT :

SANDIPKUMAR C. MORE, J.

1. The appellant/original complainant in STC No. 694 of 1996, has challenged the judgment and order dated 03/09/2001 passed by the concerned JMFC, Sangamner (hereinafter referred to as ‘the learned trial court’) in the aforesaid case, which resulted into an acquittal of present respondent No. 2 i.e. original accused from the charge under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the N.I. Act’).

2. Facts giving rise to the present appeal are as under:

Respondent No. 2/accused was in a need of money for purchase of a truck and therefore, the appellant/complainant on 23/10/1995 advanced him hand loan of Rs.1,00,000/- due to earlier acquaintance. On 24/10/1995, respondent No. 2/accused purchased a truck bearing registration No. GJ-16-T-7644 for a total consideration of Rs.3,52,000/-. It was agreed by respondent No. 2/accused that he would repay the aforesaid hand loan amount of Rs.1,00,000/- within a period of a month or two. Since respondent No. 2 could not repay the said amount within the stipulated period, he issued a cheque in dispute in the name of the appellant/complainant on 30/01/1996, drawn on Sangamner Merchants Co-operative Bank, Branch Sangamner. The appellant/complainant was constrained to deposit the said cheque in his bank account on 29/06/1996 due to non payment of the said amount. However, the cheque could not be honoured due to insufficient of funds. On 01/07/1996, the appellant/complainant issued a statutory notice to respondent No. 2/accused and thereby demanded the amount of cheque in dispute. Respondent No. 2/accused instead of paying the said amount of hand loan, replied the notice on 11/07/1996 and thereby denied the liability of paying the cheque amount.

3. It was the defence of the respondent No. 2/accused under the reply notice dated 11/07/1996 that he purchased the aforesaid truck from one Gulam Mohammad Jalal Khan Pathan, resident of Jakhavav, Tq. Mangrol, District: Surat, Gujarat State and paid consideration of Rs.2,00,000/- in cash to him. It was agreed that the remaining amount of Rs.1,52,000/- was to be paid as early as possible. However, respondent No. 2/accused then came to know that the said Gulam Mohammad Pathan was not the registered owner of the said truck and at that time the appellant/complainant being a mediator in the said transaction, told him to purchase the said truck and the balance amount be paid to Gulam Mohammad Pathan after the transfer of truck in the name of respondent No. 2/accused. Since the appellant/complainant was the mediator in the said transaction, he had taken responsibility of making the said truck transferred in the name of respondent No. 2. It was further agreed at the relevant time that respondent No. 2/accused was to issue cheque to the appellant/complainant for transferring documents of the said truck in the name of respondent No. 2/accused. It was also agreed that the said cheque of Rs.1,00,000/- which was given by respondent No. 2/accused to the appellant/complainant, was to be encashed only on the transfer of the said truck to the name of respondent No. 2/accused within a period of six months. However, it is contended by respondent No. 2/accused that the appellant/complainant did not procure any document from Gulam Mohammad Pathan in respect of the said truck and avoided to transfer the said truck in his name. Since the appellant/complainant could not transfer the said truck, respondent No. 2/accused was not at all under the liability of paying the amount of the cheque. It is also contended by respondent No. 2/accused that the appellant/complainant betrayed him by misusing the said cheque.

4. However, the appellant/complainant then fled complaint bearing S.T.C. No. 694 of 1996 in the trial court on 24/07/1996 despite receiving the reply. In the meantime, the appellant/complainant had also fled a Special Civil Suit No. 120 of 1996 for recovery of an amount of Rs.1,00,000/- in the court of Civil Judge