HIMA KOHLI, J. (Oral)

1. The present petition has been filed by the petitioner/complainant under Section 378 Cr.PC craving leave to assail the judgment dated 28.3.2006 passed by the learned ASJ in Crl.A. 3/2006, whereby the order on conviction dated 6.12.2005 and order on sentence dated 18.1.2006 passed by the learned MM in CC No.136/1/02 were set aside and the respondent No.2 was acquitted of the offence under Section 138 of the of the Negotiable Instruments Act.

2. The brief facts of the case as set out by the petitioner in the complaint filed by him under Section 138 of the Negotiable Instruments Act (for short Rs.the Act’) are that in the month of December 2001, he had advanced a loan of Rs.72,000/- to the respondent No.2 and the latter had promised to return the loan amount in the first week of January 2002. The respondent No.2 had allegedly issued a cheque bearing No.958882 dated 4.1.2002 for a sum of Rs.72,000/- drawn on Bank of Maharashtra, Vivek Vihar in favour of the petitioner towards the discharge of his liability. However, as per the memo dated 15.3.2002, issued by the bankers of the petitioner, when he had presented the said cheque for encashment, the same was dishonoured and returned on account of insufficient funds. Thereafter, the petitioner had issued a legal notice dated 26.3.2002 to the respondent No.2 demanding the aforesaid amount. Respondent No.2 had replied to the said legal notice and had stated that the cheque in question had been stolen and he had lodged a complaint with the local police in that regard and further, that he had informed his bankers to stop payment of the said cheque by sending a written intimation to that effect.

3. The petitioner then filed a complaint the against the respondent under Section 138 of the Act on 27.4.2002. In the course of the trial, the complainant had examined himself as CW-1 and the clerk of Bank of Maharashtra as CW-2. The accused had examined himself as DW-1. He had also examined two other witnesses, Sh.Dewan Singh, clerk from Bank of Maharashtra as DW-2 and his wife, Smt.Anita Modi, as DW-3. After examining the evidence brought on record and hearing the counsels for the parties, the learned MM had allowed the complaint of the petitioner vide judgment dated 6.12.2005 and had convicted the respondent No.2 for the offence under Section 138 of the Act. As per the order on sentence, the respondent No.2 was awarded simple imprisonment for a period of one year and directed to pay compensation of Rs.72,000/- to the petitioner, apart from paying him litigation charges of Rs.2,000/-

4. Aggrieved by the aforesaid order of conviction and order on sentence, the respondent No.2 had preferred an appeal. By the impugned judgment dated 28.03.2006, the appellate court arrived at the conclusion that the petitioner/complainant had not been able to prove his case against the respondent No.2 beyond reasonable doubt having failed to establish that there was any consideration for the cheque issued by the respondent No.2 in favour of the petitioner and further, on account of the failure to prove the three sources of the amount that had allegedly been advanced as loan to the respondent No.2. Resultantly, the impugned order dated 6.12.2005 passed by the learned MM was set aside by the appellate court and the respondent No.2 was acquitted for the offence under Section 138 of the Act. Aggrieved by the aforesaid acquittal order, the petitioner/complainant has filed the present petition for seeking leave to file an appeal.

5. Learned counsel for the petitioner/complainant has assailed the impugned judgment on two counts. The first ground taken by him is that the appellate court had erred in overlooking the observations made by the learned MM in his judgment to the effect that there were some business dealings between the petitioner and the respondent No.2 and therefore, there was enough reason to believe that the cheque in question had been issued by the petitioner in favour of th