JUDGMENT :

S.R. Brahmbhatt, J.

Heard learned advocates for the parties.

2. The appellant, original complainant in Criminal Case No. 1165 of 2000 filed under the provisions of Section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as the Negotiable Instruments Act for the sake of brevity) has approached this Court under Section 378 of the Code of Criminal Procedure challenging the order of acquittal dated 26th September,2008 passed by the Learned Judicial Magistrate First Class, Vadodara in Criminal Case No.1165 of 2000 acquitting the respondents herein above of the charge of committing offense punishable under Section 138 of the Negotiable Instruments Act.

3. Facts in brief leading to filing of this appeal deserve to be set out as under;

4. The complainant has styled herself as proprietor of a firm called Perfection Engineering Company having its office at Vadodara, she appointed her husband Shri Mahesh R. Shah, her power of attorney holder. The appellant company is said to have been engaged in business of manufacturing and supplying of engineering machineries. The original accused No.1 and 2, respondent No.2 and 3 were partners of Dev Offset, a firm having its office at Surat and accused No.3 namely Ishwarbhai D. Patel, respondent No.4 herein above, is said to have been proprietor of Parth Designs, having its office at Surat. It was the case of the complainant before the Trial Court that the appellant received order from Dev Offset Firm for purchasing printing machine of 15x20 size, which was agreed to be sold for Rs. 3,10,000/-, accused No.1 and 2 paid Rs. 80,000/- towards the price of the machine to be supplied by the appellant company and executed an agreement for payment of the remaining amount of Rs. 2,30,000/- on Stamp Paper of Rs. 10/- on the same day. The accused No.3 is said to have issued post dated Cheque for Rs. 2,30,000/- in favour of the appellant company drawn on Varachcha Cooperative Bank Limited, Surat. The Cheque was dated 30th September, 1999. While issuing the post dated Cheque, the instruction came to be issued not to present the same immediately in the Bank. Hence the said Cheque was not presented in the Bank. The appellant presented the Cheque after receiving instruction to present the same from respondent No.4, the Cheque was not honoured by the drawee Bank and it was returned to the presenter with a memo containing endorsement that signature differ. It is contended by the appellant-complainant that respondent No.4 accused could not make arrangement for sufficient fund in the Bank account. As the Cheque was not honoured, the statutory notice came to be issued to respondent No.2 and 4, which they refused to accept. Hence after completion of the statutory period, criminal complaint came to be lodged before the Chief Judicial Magistrate, Vadodara, wherein it came to be registered as Criminal Complaint No.1165 of 2000. The Learned JMFC, Vadodara after recording the evidence and hearing the rival contentions of the parties, came to the conclusion that the offence was not made out so as to bring home conviction on the part of the respondents and hence acquitted them vide its order dated 26th September,2008 in Criminal Case No.1165 of 2000, which is impugned in this appeal under Section 378 of the Code of Criminal Procedure.

5. This Court (Coram: Hon'ble Mr. Justice D.H. Waghela, J.) on 3.7.2009 admitted the appeal and issued bailable warrant in sum of Rs. 5000/- for procuring the presence of respondent Nos. 2,3 and 4 and ordered to list the appeal on 6th August,2009 and called for R & P in the meantime. The matter was slated before this Court for final disposal.

6. Shri S.J. Gayakwad, learned advocate appearing for the appellant submitted that the Trial Court has patently erred in not appreciating the evidence on record. The Trial Court ought to have appreciated the evidence on record in its true perspective. The complainant has established her case in respect of legally enforcible liability of