JUDGMENT :

Harsha Devani, J.

This appeal under section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") at the instance of the original complainant is directed against the judgment and order of acquittal dated 7th February, 2005 passed by the learned Second Judicial Magistrate First Class, Himmatnagar, Sabarkantha in Criminal Case No.380 of 1998 whereby the respondents No.2 and 3 have been acquitted for the offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the N.I. Act").

2. The appellant - complainant lodged a complaint in the Court of the learned Chief Judicial Magistrate, Himmatnagar, alleging that the complainant is engaged, inter alia, in the business of cheque discounting. The accused No.1 is carrying on the business as Proprietor of Riddhi Graphics, Himmatnagar, at Somabhai Chambers and the accused No.2 is the father of the accused No.1. The accused No.1 needed funds for his personal work and had opened his account with the complainant - partnership firm and the accused No.2 had stood as a guarantor for a sum of Rs.15,00,000/- (rupees fifteen lacs) and accordingly, the accused No.1 had obtained loan from the complainant firm. At the time when the accused No.1 availed of the loan from the complainant firm, he had completed all formalities for obtaining loan like issuing cheques, writings, etc. The accused No.1 after duly understanding, applying his mind, voluntarily and willingly put necessary signatures, etc. on the cheques and writings. The accused No.1 had time and again made withdrawals from the accounts maintained by him with the firm.

2.1 At the time when the accused No.1 took the loan, it was decided that he would pay monthly interest @ 1.5% and 0.5% per month by way of service charges. The accused No.1 had issued a cheque bearing No.131106 on the account maintained by him with the Himmatnagar Nagrik Sahakari Bank Ltd., Himmatnagar to the complainant firm. It was agreed between the parties that the said cheque was to be presented and encashed if any amount was payable along with interest and service charges at the time of taking accounts of the firm. Both the accused had assured him that at the time when the cheque is presented, it would be honoured and only because of such assurance the complainant firm had advanced loan to the accused No.1. If such assurance had not been given, the complainant firm would not have advanced any loan to the accused No.1.

2.2 It was further alleged that on 08.01.1998, at the time of mutually settling the accounts of the accused No.1 with the complainant firm, it was found that an amount of Rs.14,72,587.52 ps. was payable by the accused to the complainant firm. Accordingly, the complainant filled up the said amount in the cheque and as told by the accused, the cheque dated 08.01.1998 was presented to the bank for acceptance; however, the cheque was not accepted and came to be returned with the endorsement "funds insufficient". In this regard, despite orally informing the accused and their advocate about the same, none of them paid the amount and gave false promises and were whiling away the time.

2.3 It was, accordingly, alleged that in the above background, the accused, in connivance with each other, have abetted each other and given totally false assurance, promise, to the complainant firm, despite the fact that the funds were not sufficient for honouring the cheque, without making any arrangement, had given a false cheque and for the purpose of their personal gain, obtained a huge loan from the complainant firm and with mala fide and criminal intention caused huge financial loss to the complainant firm and thereby, committed the offence punishable under section 420 of the Indian Penal Code and section 138 of the Negotiable Instruments Act, 1881.

2.4 It was further stated that in the aforesaid facts and circumstances, the complainant firm, through its advocate, issued a notice dated 15.01.1998 to the accuse