JUDGMENT :

1. Despite sufficient opportunity was given to the respondent No. 2, he has chosen not to appear before the Court. Since the matter is of 2012, the Court proceeded with matter.

2. This appeal is filed by the appellant - original complainant under the provisions of Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 25.11.2011, passed in Criminal Case No. 4110 of 2007 by the learned Additional Chief Judicial Magistrate, Junagadh, recording the acquittal.

3. Facts, in brief, are that complainant - Shrilal Meghrajmal Mulchandani had lodged a complaint before the Court that he was staying at Junagadh and was doing the construction work. That the respondent No. 2 also resided in Junagadh, who, due to requirement arose, had taken hand loan of Rs.3 lakh from the complainant, for which, the respondent No. 2 issued a cheque bearing No. 0205544 dated 11.08.2007, drawn on Vijaya Bank, Junagadh and had assured the complainant that he would get back his money by depositing the cheque in the bank, however, when the complainant deposited the cheque in the Merchantile Co.op. Bank Ltd., Junagadh branch, the same was returned by the bank with an endorsement "Fund Insufficient" on 13.08.2007. Accordingly, the complainant issued a legal notice dated 10.09.2007 under the provisions of the Negotiable Instruments Act, 1881 (herein after referred to as "the NI Act"), which was served upon the respondent No. 2 on 21.09.2007. Though served, the respondent No. 2 neither replied the said notice nor repaid the amount in question and hence, the complainant constrained to file the complaint under Section 138 of the NI Act before the competent Court at Junagadh.

3.1 Upon such complaint being filed and subsequent to service of summons upon the respondent No. 2, he appeared before the Court. Since the accused did not plead guilty, trial was proceeded and several oral and the documentary evidence were produced. Vide impugned judgment and order, the learned trial Judge acquitted the accused person. Being aggrieved by the same, the appellant - original complainant has preferred the present appeal.

4. Heard, learned advocate Mr. Param Buch for learned advocate Mr. Hriday Buch for the appellant - original complainant and learned APP Ms. Jirga Jhaveri, APP for the respondent No. 1 - State.

4.1 Learned advocate Mr. Param Buch for the appellant - original complainant has mainly contended that the learned trial Judge ought to have convicted the accused inasmuch as the cheque in question was duly signed by the respondent No. 2 and came to be dishonoured when presented before the bank with an endorsement "Fund Insufficient". Furthermore, in his submission, the learned trial Judge ought to have appreciated the fact that the cheque was issued for discharge of legal liability towards complainant. Further, it is submitted that the learned trial Judge ought to have appreciated the facts that the cheque in question was deposited in the bank in time; legal notice upon the respondent No. 2 was also issued within the stipulated time; the cheque was returned unpaid with an endorsement "Fund Insufficient" and that, the respondent No. 2 had not arranged to repay the money within the notice period. It is submitted that the learned trial Judge has failed to take into consideration such important aspects of the matter and accordingly, has committed serious error in disbelieving the case of the complainant.

4.2 The learned advocate for the appellant further submitted that in view of the fact that the cheque in question was issued towards legal dues qua the appellant - complainant, statutory presumption in favour of the appellant - complainant under Sections 118(a) and 139 of the NI Act was required drawn. Further, the learned trial Judge ought to have held, in view of the evidence on record, that the accused had failed to rebut the onus of proof and statutory presumption against him under Sections 118(a) and 139 of the NI Act, but it is not