The main legal point established in the judgment is that the complainant must prove the existence of a legally recoverable debt or liability and that the cheque was given towards discharge of such debt or liability, as required under Section 138 of the Negotiable Instruments Act.

JUDGMENT :

Bankim N. Mehta, J.

The appellant-original complainant has preferred this appeal under Section 378 of the Negotiable Instruments Act challenging the judgment and order of acquittal passed by learned Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Nadiad on 22.02.2010 in Criminal Case No. 1156 of 2008 acquitting the respondents accused for the offence under Section 138 of the Negotiable Instruments Act (for short the 'Act').

2. According to the complainant, the accused is doing business of lining works of Automobiles in the name of Alpesh Lining Works. As the accused was in need of finance for his business before about two and half years, he demanded Rs.4 lacs. Therefore, he gave Rs.4 lacs to the accused as hand loan. At the time of giving the amount, the accused gave two cheques bearing number 782556 and 782558 dated 17.08.2007 each for Rs.2 lacs drawn on Bank of Baroda, Ashram Road Branch, Nadidad as security. On making demand of the amount, the accused returned, in all Rs.2 lacs, by cheques. Therefore, Rs.2 lacs remained payable by the accused. The cheques given by the accused towards security were presented in the bank but, both the cheques returned unpaid with endorsement of "insufficient fund". Therefore, a notice dated 29.08.2007 was served to the accused through advocate and a demand for unpaid cheque amount was made. The accused gave reply on 10.09.2007 through his advocate. Therefore, he again sent reply to the reply of notice thorough advocate on 22.09.2007 and demanded outstanding amount of Rs.2 lacs but, the accused did not pay the amount. Therefore, the complaint under Section 138 of the Act was filed in the Court of learned Chief Judicial Magistrate at Nadiad. The complaint was registered as Inquiry No. 133 of 2007. The complainant filed affidavit Ex. 5 that he does not want to proceed with the complaint in respect of cheque No. 782556. Therefore, after examination of the complainant, by order dated 15.02.2008, the Trial Court registered the offence as Criminal Case No. 1156 of 2008 in respect of cheque number 0782558 and issued summons to the accused and dismissed the complaint in respect of cheque number 0782556.

3. Pursuant to the summons issued by the trial court, the accused appeared and pleaded not guilty. Therefore, the prosecution adduced evidence on completion of recording of evidence; the incriminating circumstances appearing in the evidence against the accused were explained to him. The accused, in his further statement, recorded under Section 313 of Criminal Procedure Code, 1973 explained the incriminating circumstances and stated that according to him, Rs.30,000/- remains payable to the complainant and Rs.60,000/- remains payable by the complainant and the complainant has encashed the cheque for Rs.90,000/- against the amount payable to him. The accused also filed return statement and explained that out of the amount given to him by cheque no. 848853 for Rs.1 lac and cheque No. 538269 for Rs.50,000/- were drawn by Mr. R.J.Patel but Mr. R.J. Patel has not given any notice to him nor filed complaint, that the complainant has not served notice as power of attorney holder of the said Mr. R.J.Patel. Therefore, no offence is committed under Section 138 of the Act. After hearing learned advocate for the parties, the trial court by impugned judgment, acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.

4. I have heard learned advocate Mr. K.R.Brahmbhatt for the appellant and learned advocate, Mr. Aftab Hussain Ansari for respondent-accused and learned APP, Mr. R.C.Kodekar for respondent-State at length and in great detail. I have also perused the record and proceedings of the trial court.

5. Learned advocate, Mr. Brahmbhatt submitted that the amounts were given to the accused by the complainant and some of the amounts were given from the joint account with his father Mr. R.J.Patel. Therefore, legal debt is proved. He also submitt