JUDGMENT

Ram Prasanna Sharma, J. - The appeal is directed against judgment dated 22.11.2017 passed by Judicial Magistrate First Class, Raipur (Chhattisgarh) in Criminal Case No. 2622/2015 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, on 27.5.2015 one cheque was given by the respondent/accused to the appellant for a sum of Rs.2 lakh. The said cheque was presented in the Syndicate Bank, Main Branch Raipur from where endorsement was made and information was given to the appellant stating that there is insufficient fund on the account of the respondent. After the said dishonour of the cheque, the appellant sent a registered legal notice through his counsel on 18.9.2015. The notice was duly accepted by the respondent and thereafter the respondent issued fresh cheque in favour of the appellant on 20.9.2015 to the tune of Rs.2 lakh which was returned by the bank for the reason and description of insufficient fund. Again notice was issued to the respondent on 14.10.2015 after dishonour of the cheque on 09.10.2015 which was received by the respondent on 16.10.2015, but the amount was not paid and thereafter complaint was filed on 24.11.2015 which resulted into acquittal of the respondent.

3. Learned counsel for the appellant submits as under:

(i) From the evidence, charge under Section 138 of the Act, 1881 was proved against the respondent because issuance of the cheque was not disputed which was issued for valid transaction but the trial Court recorded finding contrary to the factual matrix and legal aspects of the matter.

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

4. On the other hand, learned counsel for the respondent submits that finding of the trial court is based on proper marshaling of the evidence, which is not liable to be interfered with.

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

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 examined Santram Sahu (PW-1), Chief Manager, Karnataka Bank Ltd. Branch Fafadih Chouk, Raipur namely Santosh Kumar (PW-2) and Special Assistant, Syndicate Bank, Branch Ramsagarpara Raipur namely SK Agrawal (PW-3) and exhibited documents P/1 to P/15. The respondent side exhibited document D/1. Complainant Santram Sahu (PW-1) deposed before the trial Court that the respondent borrowed sum of Rs.2 lakh on 30.12.2014 and he has assured that the amount shall be repaid by 15.5.2015. For discharging his liability, the respondent issued cheque bearing No.223661 of Karnataka Bank Ltd. Branch Fafadih Chouk, Raipur to the tune of Rs.2 lakh but the same was dishonoured on 18.9.2015. As per the version of this witness, he issued notice to the respondent and thereafter he again issued a cheque of Rs.2 lakh bearing No.223666 dated 20.9.2015. This cheque was again dishonoured due to insufficiency of fund. The Bank informed the complainant regarding dishonour of the cheque on 09.10.2015. Again he issued a notice to the respondent on 14.10.2015 but after receiving the notice on 16.10.2015, the amount was not paid that is why the complaint was filed on 24.11.2015. Version of this witness is supported by version of Chief Manager, Karnataka Bank Ltd. Branch Fafadih Chouk, Raipur namely Santosh Kumar (PW-2) and Special Assistant, Syndicate Bank Branch Ramsagarpara Raipur namely SK Agrawal (PW-3). It is further supported