IMPORTANT POINT
It is incumbent upon complainant to prove and establish that cheque was issued by accused towards legally enforceable liability.

Davare Shrihari P., J.—Heard learned respective Counsel for the parties.

2. This is an application preferred by the applicant, seeking leave to file appeal against the judgment and order of acquittal dated 22.9.2009 passed by learned Judicial Magistrate First Class, Ahmednagar, acquitting the respondent No.1/ original accused for the offence under section 138 of Negotiable Instruments Act.

3. I have perused the impugned judgment and order of acquittal dated 22.9.2009 and record and proceedings with the assistance of learned Counsel for the parties.

4. In short, it is the case of the complainant that he gave amount of Rs.1,40,000 to the husband of the accused towards sale transaction on 24.1.2005, of land bearing gat No.160, situated at Kukan, at the residence of the accused and thereafter they went to the office of subregistrar for registration of the saledeed, but it was revealed that since said land was of new tenure, saledeed could not be executed and thereupon husband of accused assured that he would procure permission for the sale of said land and if, such permission is not obtained within the period of one year , he would return the said amount. However, it is the contention of the complainant that inspite of lapse of one year, accused did not return amount accepted by him towards aforesaid sale transaction and, therefore, complainant insisted for the repayment of said amount. Thereupon, it is the contention of the complainant that accused issued cheque No.643783 dated 30.12.2007 for the amount of Rs.1,40,000 towards repayment of the above referred amount. The complainant presented said cheque for encashment, however, said cheque was dishonoured and was returned unpaid with the endorsement ‘funds insufficient’. Hence complainant issued statutory notice to the accused through Advocate on 4.2.2008 and same was received by the accused. However, accused did not comply with the requisitions, contained in the said notice nor even replied it. Hence after observing necessary formalities, complainant filed complaint before learned Judicial Magistrate First Class, Ahmednagar against accused under section 138 of Negotiable Instruments Act.

5. After verification, process was issued against the accused and accordingly accused appeared in the said matter. Plea of the accused was recorded. Accused pleaded not guilty and claimed to be tried. Evidence was adduced by the parties and complainant examined himself, but accused neither examined himself nor examined any defence witness.

6. After appreciating evidence, learned trial Judge arrived at the conclusion that accused is not guilty for the alleged offence and consequently acquitted him.

7. Being aggrieved and dissatisfied by the said judgment and order of acquittal, applicant/original complainant has preferred present application seeking leave to file appeal against the same.

8. Learned Counsel for the applicant submitted that accused did not even reply to the statutory notice dated 4.2.2008 nor he examined himself or examined any defence witness and therefore defence put up by the accused in the cross-examination of the complainant was surprising and new to the complainant and, hence, it is urged that matter be remanded back to the trial Court by giving opportunity to complainant to adduce necessary evidence to meet the defence of the accused. Learned Counsel further submitted that similar view was taken by this Court (Nagpur Bench) in the case of (Hinganghat Nagari Sahakari Patsanstha Maryadit v. Gulab s/o Krushnaji Pimpalshende)1 wherein it is observed that :

“Complaint was filed by the complainant for dishonour of cheque wherein existing debt and liability was admitted but demand notice was not replied by the accused and defence of the accused was that he was not a member of complainant credit society raised for first time in cross-examination and then in oral arguments and therefore it is observed that complainant has no opportunity to know the defence and was taken by surprise