The absence of evidence proving a legally enforceable debt led to the affirmation of the accused's acquittal in a cheque dishonor case.

JUDGMENT :

S.V. PINTO, J.

1. 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 passed by the learned 5^th Additional District Judge, Rajkot (hereinafter referred to as ‘the learned Appellate Court’) in Criminal Appeal No. 12 of 2011 dated 31.05.2011, whereby, the learned Appellate Court has quashed and set aside the judgment and order of conviction passed by the learned 11th Additional Chief Judicial Magistrate, Rajkot, (hereinafter referred to as ‘the learned Trial Court) in Criminal Case No. 3743 of 2005 dated 17.02.2011, whereby, the learned Trial Court convicted and sentenced the accused to undergo simple imprisonment for six months and ordered the accused to pay Rs.3,50,000/- (Rupees Three Lacs Fifty Thousand Only) as compensation within a period of one month and in default, simple imprisonment for 45 days for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the N.I.Act’).

1.1. 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.

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

2.1. The complainant and the accused were relatives and the accused was the owner of Flat No.4 situated on the first floor of “Gaurav Apartment’ on Kalavad Road, Rajkot having a built up area of 450 square feet. The complainant wanted to purchase the flat and a registered agreement to sell was executed between the parties and the complainant had paid an amount of Rs.70,000/- as earnest money to the accused by two cheques. The remaining amount was also paid in cash, but the accused did not hand over possession of the flat to the complainant and did not get the registered sale deed executed in favour of the complainant. The accused sold the flat to some other person and had also taken a loan on the flat and as the registered sale deed could not be executed, a compromise was arrived at between the parties and the market value of the flat was fixed at Rs.3,85,000/-. Towards the compromise amount, two cheques were given by the accused to the complainant, out of which, cheque no. 0268558 for Rs.3,50,000 dated 24.09.2004 from the account with Rajkot Nagarik Sahkari Bank Limited, Dr.Yagnik Road Branch, Rajkot was deposited by the complainant in his account, but the cheque returned unpaid. On contacting the accused, the complainant was asked to deposit the cheque once again and when the cheque was deposited, it returned unpaid with the endorsement funds insufficient. The demand statutory notice was given which was duly served to the accused and the accused gave an evasive reply, but did not repay the amount within the stipulated period, and hence, the complainant filed a complaint under Section 138 of the N.I.Act before the Court of the Chief Judicial Magistrate, Rajkot on 11.04.2005, which came to be registered as Criminal Case No. 3743 of 2005.

2.2. The learned Trial Court took cognizance of the offence and the accused was duly served with the summons and appeared before the learned Trial Court. The plea of the accused was recorded at Exh.9, wherein, the accused denied all the contents of the complaint and the entire evidence of the complainant was taken on record. The complainant filed the examination-in-chief at Exh.10 and examined one witness Pitambar C. Chandnani at Exh.28 and produced 15 documentary evidences in support of his case.

2.3. After the closing pursis was filed by the lear