In an appeal against acquittal, the prosecution must demonstrate a legally enforceable debt; an accused's acquittal will not be disturbed unless clear illegality or absurdity is shown.

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 Judicial Magistrate First Class, Mehsana (hereinafter referred to as ‘the learned Trial Court), in Criminal Case No. 2185 of 1997 on 24.08.2009, whereby, the learned Trial Court acquitted the respondent no.1 - the original accused 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 is a consultant of shares and securities and is doing the business in the name of “Sun Consultancy”. The husband of the accused Bhagwandas J. Patel, son of the accused Lalitkumar Bhagwandas Patel and daughter.in.law Priyavandaben Lalitkumar Patel are engaged in the business of running “Shayona Petrochem Public Limited” and Bhagwandas J. Patel is the Chairman and Lalitkumar Bhagwandas Patel is the Managing Director of “Shayona Petrochem Public Limited”. The complainant had to recover a sum of Rs.42,75,720/. from one Kishorbhai Visha, the proprietor of Vinayak Investments and in turn, Kishorebhai Visha had to recover a sum of Rs.87,29,600/. from “Shayona Petrochem Public Limited.”. A settlement was arrived at between “Vinayak Investment” and “Shayona Petrochem Public Limited” and it was agreed that the complainant will recover a sum of Rs.25,00,000/. from “Shayona Petrochem Public Limited” with interest at the rate of 30%. A Pledge Deed was executed on 21.08.1996 and the shares of “Shayona Petrochem Public Limited” were transferred in the name of the complainant. In connection with the above outstanding amount, the following five cheques were issued to the complainant.

Out of the above mentioned cheques, cheque no. 137426 dated 23.02.1997 for Rs.6,00,000/. from the account of the accused with “Mangal Cooperative Bank Limited”, Goregaon, Bombay Branch was deposited by the complainant in his account with Dena Bank, Rajmahal Road, Mehsana and the cheque 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 send any reply to the notice and did not repay the amount within the stipulated period, and hence, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act before the Court of Chief Judicial Magistrate, Mehsana which came to be registered as Criminal Case No.2185 of 1997.

2.2 The accused was duly served with the summons and appeared before the learned Trial Court and his plea was recorded at Exh.12 and the evidence of the complainant was taken on record. The complainant was examined on oath at Exh.61. The complainant produced 07 documentary evidence in support of the case. The complainant examined Himmatlal Govindbhai Hingoo, the accountant of the Mangal Cooperative