JUDGMENT

Ram Prasanna Sharma, J. - The appeal is directed against judgment dated 13.7.2018 passed by Judicial Magistrate First Class, Janjgir, Distt. Janjgir-Champa (Chhattisgarh) in Criminal Case No. 59/2017 whereby the said Court acquitted the respondent for the offence under Section 138 of the Negotiable Instruments Act, 1881(for short 'the Act 1881').

2. As per the version of the appellant/complainant, he had personal relation with the respondent and the respondent borrowed a sum of Rs.2 lakh for construction of his house on 03.5.2016 and it was promised that the amount shall be returned within eight months, but the amount was not returned within the said period and thereafter the respondent has drawn a cheque in favour of the appellant on 02.4.2017 of Central Bank of India, Branch Akaltara and the same was deposited by the appellant in Punjab National Bank, Branch Naila for clearance but the same was returned on account of insufficiency of fund. The said information was given by the bank on 03.6.2017 thereafter notice was issued to the respondent on 10.6.2017 for payment and the respondent refused to take the notice on 16.6.2017. Thereafter complaint was filed which resulted into acquittal.

3. Learned counsel for the appellant submits as under:

(i) From the evidence of the complainant, it is established that the respondent borrowed sum of Rs.2 lakh from him and the borrower did not return the amount that is why the respondent issued the cheque in his favour which was dishonoured.

(ii) After service of notice to the respondent, he did not return the money, therefore, charge under Section 138 of the Act, 1881 is proved against him.

(iii) The trial Court recorded finding against the factual matrix and legal aspects of the matter, therefore, finding of the trial Court is not sustainable.

(iv) The trial Court has not evaluated the evidence properly, therefore finding of the trial Court is to be set aside the respondent may be convicted.

4. On the other hand, learned counsel for the respondent submits as under:

(i) As per the version of the complainant (para 28), the respondent alone had come to take the money but he produced an agreement i.e. Ex-P/9 in which two persons have been signed which rebutted the version of the appellant.

(ii) Witnesses of the agreement were not produced before the trial Court and no account was produced and proved regarding transaction against the respondent and therefore, charge against the respondent is not proved.

(iii) Finding of the trial Court is based on proper marshaling of evidence, which is not liable to be interfered with.

5. I have heard learned counsel for the parties and perused the judgment impugned.

6. The first question for consideration before this Court is whether cheque for Rs.2 lakh was drawn by the respondent in favour of the appellant for discharge of debt, whether the cheque deposited in the bank for clearance was returned unpaid on account of insufficiency of fund in the account of the respondent and whether after legal notice the respondent has not returned the amount of cheque to the appellant.

7. The appellant side adduced evidence of Kailash Agrawal (PW-1) and produced documents Ex-P/1 to P/8. The respondent side did not adduce oral or documentary evidence. As per the version of Kailash Agrawal (PW-1), the respondent borrowed sum of Rs.2 lakh on 03.5.2016 for repairing of his house and an agreement was prepared between the parties as per Ex-P/9. When the amount was not returned, the respondent issued a cheque in favour of the appellant on 02.4.2017 for Rs.2 lakh which was deposited in the Bank on 02.6.2017 but the same was returned with a note 'insufficient fund' on 03.6.2017. Notice was issued to the respondent on 10.6.2017 but the respondent refused to accept the same thereafter the complaint was filed before the trial Court. Version of this witness is supported by documents ExP/1 to Ex-P/8. No one deposed on behalf of the respondent before the trial court and no