Lack of convincing evidence by the complainant and the existence of a plausible defense by the accused justified the appellate court's acquittal under Section 138 of the Negotiable Instruments Act.

JUDGMENT :

S.V. PINTO, J.

1. Though served, the respondent no. 2- original accused has not appeared either in person or through an advocate to make submissions on his behalf.

2. This appeal has been filed by the appellant – original complainant under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) against the judgment and the order dated 30.06.2010 in Criminal Appeal No.13 of 2009 passed by the learned Additional Sessions Judge and Presiding Officer, F.T. Court No.4, Vadodara (hereinafter referred to as ‘the learned Appellate Court’), whereby, the learned Appellate Court has quashed and set aside the judgment and order of conviction passed by the learned Judicial Magistrate, First Class, Vadodara, (hereinafter referred to as ‘the learned Trial Court), in Criminal Case No. 601 of 2004 on 12.01.2009, whereby, the learned Trial Court convicted and sentenced the accused to undergo simple imprisonment for six months and fine of Rs.5,000/- (Rupees Five Thousand Only) and in default, simple imprisonment for 30 days for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the N.I.Act’).

2.1. The parties are hereinafter referred to as ‘the complainant and the accused’ as they stood in the original case, for the sake of convenience, clarity and brevity.

3. The relevant facts leading to filing of the present appeal are as under:

3.1. The complainant and the accused were friends and were known to each other and between June, 2001 to April 2002, the accused had taken an amount of Rs.1,25,000/- as advance hand loan from the complainant. When the complainant demanded for the amount, the accused gave cheque No.065826 for Rs.65,000/- dated 20.11.2003 and cheque No.6065827 for Rs.60,000/- dated 15.11.2003 from his account with “Sri Janta Sahakari Bank Ltd.” The cheques were deposited by the applicant in his account, but both the cheques returned unpaid with the endorsement ‘funds insufficient’. The demand statutory notice was given, which was duly served to the accused, but the accused did not pay up the amount within the stipulated period, and hence, the complainant filed a complaint before the Court of the Judicial Magistrate First Class, at Vadodara, which came to be registered as Criminal Case No. 601 of 2004.

3.2. The learned Trial Court took conginzance of the offence and the accused was duly served with the summons and appeared before the learned Trial Court and the plea of the accused was recorded at Exh. 4, wherein, the accused denied all the contents of the complaint and the entire evidence of the complainant was taken on record. The complainant examined 5 witnesses and produced 8 documentary evidences in support of the case.

3.3. After the closing pursis was field by the learned advocate for the complainant at Exh.37, the further statement of the accused under Section 313 of the Code was recorded wherein the accused denied the evidence on record. After hearing the arguments of the learned advocates for both the parties, the learned Trial Court, by the impugned judgment and order dated 12.01.2009, was pleased to convict and sentence the accused to undergo simple imprisonment for six months and fine of Rs.5,000/- (Rupees Five Thousand) and in default, simple imprisonment for 30 days for the offence punishable under Section 138 of the N.I.Act.

3.4. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the accused preferred Criminal Appeal No.13 of 2009 before the Sessions Court, Vadodara, whereby, the appeal came to be allowed and the learned Additional Sessions Judge and Presiding Officer, F.T. Co