JUDGMENT :

ASHOKKUMAR C. JOSHI, J.

1. 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 14.02.2012, passed in Criminal Case No. 311 of 2009 by the learned Judicial Magistrate First Class, Visnagar, recording the acquittal.

2. Facts, in brief, are that complainant-Nayak Amrutbhai Dalsukhram lodged a complaint before the Court that the complainant and the respondent No. 2 both were serving in the Visnagar S.T. Depot and working together. That, on account of urgent requirement arose to the respondent No. 2 for Rs.1 lakh for some social purpose, he demanded such an amount from the complainant and accordingly, the complainant lent him Rs.1 lakh for a period of two months. Thereafter, since the respondent No. 2 did not repay the said amount, the complainant made repeated attempts and at last, the respondent No. 2 issued a cheque bearing No. 1232605 dated 25.09.2008, drawn on the State Bank of Saurashtra, Visnagar Branch for Rs.1 lakh and had assured to the complainant that he would get back his money by depositing the cheque in the bank, however, when on 25.02.2009 the complainant deposited the cheque in the Bank of India, Visnagar branch, the same was returned by the bank with an endorsement “Fund Insufficient.” Accordingly, the complainant issued a legal notice dated 13.03.2009 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. The respondent No. 2 replied the said notice on 26.03.2009 giving vague reply and did not pay the cheque amount and hence, the complainant constrained to file the complaint under Section 138 of the NI Act before the learned Judicial Magistrate First Class, Visnagar.

2.1 Upon such complaint being filed and subsequent 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 Magistrate acquitted the accused person. Being aggrieved by the same, the appellant-original complainant has preferred the present appeal.

3. Heard, learned advocate Mr. P.P. Majmudar for the appellant-original complainant, learned advocate Mr. Kevan Patel for the respondent No. 2 and learned APP Ms. Jirga Jhaveri, APP for the respondent No. 1-State.

3.1 Learned advocate Mr. Majmudar for the appellant-original complainant has mainly contended that the learned Magistrate 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 Magistrate 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 Magistrate 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 notice was replied and the signature of the respondent No. 2 on the cheque in question was not disputed; 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 out of Rs.2 lakh, Rs.1 lakh had been paid and for remaining amount of Rs.1 lakh, cheque in question was issued, which got returned on account insufficiency of fund and the said fact, learned trial Judge has failed to take into consideration and has committed serious error in believing the case of the defence that Rs.1 lakh was given by the complainant, which were duly returned by the respondent-accused. The learned advocate for the appellant submitted such a finding is erroneous and ag