The essential requirement of sending a notice in writing to the drawer of the cheque and the receipt of information by the drawer from the bank regarding the return of the cheque as unpaid is crucial for proving the offence under Section 138 of the Negotiable Instruments Act.

ORDER :

This Appeal is directed under Section 378 of the Criminal Procedure Code, at the instance of the original complainant against the judgment and order 22.11.2019 passed by the learned Judicial Magistrate First Class, Vaso in Criminal case no. 558 of 2017.

1.1 By the said judgment and order, the learned Magistrate has recorded acquittal of respondent no.2 for the alleged offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

2. The gist of the complaint is that the complainant and the original accused knew each other as the accused used to purchase tomatoes from the complainant. On 1.3.2016, the accused had purchased tomatoes worth Rs 1,23,400/- from the complainant for which he had issued cheque bearing no.006342, dated 20.4.2016 for the aforesaid amount drawn in ICICI Bank, Kheda Branch. It is the case of the complainant that the aforesaid cheque was given against the discharge of the legal dues. The said cheque was deposited by the complainant in the Bank Of India on 8.6.2016, however, the same was dishonored on the ground of funds insufficient. The aforesaid cheque was returned back by the concerned bank with memo of return with an endorsement of ‘funds insufficient’. The complainant was, therefore, constrained to send statutory legal notice dated 23.6.2016 which the complainant claims to have served by Registered Post A.D upon the accused on 13.7.2016. It is further contended by the complainant that inspite of due service of aforesaid legal notice, no reply was given by the accused. In such circumstances, the complainant had approached the Court of learned 2nd Additional Civil Judge and Judicial Magistrate First Class, Nadiad by submitting complaint under Section 138 of the Act. The said complaint was registered on 25.7.2016 as criminal case no. 7056 of 2016. Since the said Court had no jurisdiction to try the complaint, the aforesaid complaint along with the documents was transferred to the Court having jurisdiction under section 142 (2) of the Act by order dated 14.9.2017. The complainant was directed to receive the relevant documents and the complaint to be produced before the Competent Court. Pursuant to the aforesaid order the complaint was transferred to the Competent Court of learned Judicial Magistrate First Class, Vaso and by order dated 10.11.2017, the learned Magistrate proceeded for issuance of summons on the respective parties by fixing next date of hearing on 4.12.2017. The said complaint was now registered as Criminal Case No. 558 of 2017. The verification of the complainant was recorded by the learned Magistrate. The accused had appeared before the learned Magistrate and had executed bail bond on 2.2.2018 and ultimately issues were framed and the complainant had led evidence. His Examination- in-chief was produced vide Exh. 11 and he was cross-examined by the accused. At that stage the complainant had produced two documents vide Exh. 12 which include original copy of the disputed cheque dated 20.4.2016 by Mark 12/1 and the original return memo of the concerned bank dated 8.6.2016 vide Mark 12/2. The aforesaid documents came to be accepted as evidence and were subsequently exhibited as Exh. 16 and Exh. 17 respectively. The Complainant had examined one Virendrabhai Bhadrilal Meena who is the officer of the concerned bank, vide Exh. 18 and one witness named Mustakmia Ahmedmia , who was examined vide Exh. 21. No other documentary evidence has been placed on record by the original complainant. The further statement of the accused under Section 313 of the Cr.P.C was recorded. On 25.6.2019, the complainant had submitted his written arguments vide Exh, 23. On the other hand, the learned counsel for the accused had raised objections regarding maintainability of the complainant by placing reliance upon the decision of this Court in the case of Anchor Capitals of India Ltd and Anr Vs. State of Gujarat reported in 1998 (3) GLR pg 1973, order dated 22.4.1998 passed in Misc. Civil Application No