A.R. Joshi, J.—Heard rival arguments on this criminal appeal for final hearing. Perused the record and proceedings and also synopsis of arguments, advanced by the rival parties.

2. This criminal appeal is preferred by the appellant/original complainant, challenging the judgment and order of acquittal, passed in Case No.630/1999 by the Judicial Magistrate First Class, 7th Court, Nagpur.

3. By the impugned judgment and order, dated 2.1.2003, the complaint filed by the present appellant was dismissed and present respondent no.1/original accused was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act.

4. In order to appreciate the rival submissions in the present appeal and scope of the interference in the judgment of acquittal, certain factual position and also case of complainant can be briefly stated as under.

5. During the relevant time of the year 1996 or there about, the power of attorney of complainant firm was engaged in the business of sale and purchase of the shares, securities under the name and style of M/s Saibaba Investments of which the proprietor was in fact his wife. However, he himself was actively doing the said business. There were various transactions of sale and purchase of shares and debentures so also of securities entered into between M/s Saibaba Investments and the present respondent No.1. Such transactions were sometime from February 1995 till March, 1996 and as on 31.3.1996 there was outstanding amount of Rs.4,46,595/- in the statement of accounts, maintained by the complainant. According to the complainant, there was mutual agreement between the complainant and the present respondent no.1, then accused as to how the said outstanding amount is to be paid to the complainant. As per such alleged arrangement, the cheque for Rs.1,46,595/- was given in favour of the complainant. It was bearing No.095789 dated 5.4.1996. So far as balance amount was concerned, it was allegedly agreed that the respondent no.1 should sale his house to the complainant for total consideration of Rs.3,20,000/- and out of the said amount, Rs.3,00,000/- were to be adjusted from the outstanding amount under share and debenture transactions. The balance amount of Rs.20,000/- was to be paid by the complainant to the accused on 30.6.1996.

6. In view of the above alleged arrangement according to the complainant, the present respondent no.1 executed an agreement to sale on 31.3.1996 and also signed one acknowledgment, both documents on stamp papers. Also on 31.3.1996, accused gave the above referred cheque to the complainant with putting the date 5.4.1996.

7. The cheque was presented to the banker of the complainant, however, it was dishonoured and returned unpaid with endorsement ‘payment stopped by the drawer’. Demand notice was issued of payment of Rs.1,46,595/-. The present respondent/accused did not make the payment and replied the said notice, denying transactions and denying execution of the acknowledgment and giving of the cheque for Rs.1,46,595/-. However, the present respondent/accused admitted his signature on the cheque and in fact two signatures made on the cheque and further raised a plea that he has lost the said cheque much prior on 15.1.1996 and accordingly intimated the Bank on that day itself with instruction to stop payment on the said lost cheque.

8. As there was no payment for the dishonoured cheque, the complaint was lodged and it was finally heard and ended in acquittal and said acquittal is challenged in the present appeal.

9. At the threshold it must be mentioned that the trial Court though dismissed the complaint, it had taken a specific view, so far as the giving of the cheque to the complainant and liability of the present respondent/accused for payment towards dishonour of the said cheque, in the affirmative. The only point on which the entire complaint was dismissed was held as non-maintainability of the complaint as filed by the Power of Attorney Holder Shri Rajkumar Sahaj