S.C. Das, J.

1. By this criminal appeal, filed under Section 378 of the Code of Criminal Procedure, the appellant, named above, challenged the judgment & order of acquittal, dated 14.2.2007, passed by learned Judicial Magistrate 1st Class, Court No. 1, Agartala, West Tripura in C.R. Case No. 34 of 2006 whereby the learned Magistrate acquitted the respondent (accused) from the charge framed against him under Section 138 of Negotiable Instruments Act (for short N.I. Act). Heard learned counsel, Mr. D.C. Roy for the appellant and learned counsel, Mr. D Bhattacharjee for the respondent. Learned Additional Public Prosecutor, Mr. R.C. Debnath has also been heard though the State has not been made a party in the appeal.

2. Brief fact:-

The appellant (complainant) and the respondent (accused) are full-blood brothers. The appellant filed a complaint before the learned Chief Judicial Magistrate, Agartala, West Tripura, on 03.01.2006, alleging inter alia that the accused is his full-blood brother and the accused is the proprietor of M/s. S.S. Electronics situated at 153 H.G.B. Road, Agartala and deals with the business of electronics goods such as TV, Fridge, Fan etc. The accused approached the complainant to provide him a loan of Rs. 1,00,000/- (Rupees one lakh) for his business purpose in the month of August, 2003 with an assurance that he will repay the amount within 2(two) years. Since the accused is a full-blood brother, the complainant agreed and accordingly an amount of Rupees one lakh was advanced to the accused.

The accused issued a cheque of Rupees one lakh in favour of the complainant vide Cheque No. 3389013 drawn on Punjab & Sind Bank assuring repayment. According to the complainant, the cheque was drawn on 02.09.2005. The accused requested the complainant not to deposit the Cheque, at once and therefore, the complainant was waiting till 25.11.2005 as per request made by the accused. On 26.11.2005, the complainant demanded the amount but the accused refused to make payment. Thereafter, the complainant deposited the cheque, in his bank account on 30.11.2005, with Agartala Branch of UCO Bank A/C No. SB-28035 and the bank informed him on 01.12.2005 that the cheque was dishonoured. Complainant issued notice, on 14.12.2005 and the accused received notice on 17.12.2005. The accused did not make the payment and hence the complainant filed a case before the Court seeking punishment of the accused as prescribed under Section 138 of N.I. Act.

3. In course of trial, after the appearance of the accused, learned Magistrate examined him under Section 251 of Cr. P.C. narrating the fact to which the accused pleaded not guilty and claimed to be tried.

Complainant examined himself as PW. 1 and also examined another witness namely, PW. 2, Samarendra Das, Senior Manager of UCO Bank of Agartala Branch.

After closure of the prosecution evidence, accused was examined under Section 313 of Cr. P.C. and thereafter, on his turn, the accused though claimed to adduce defence evidence but ultimately, even after repeated chance afforded to the accused, he failed to adduce any defence evidence.

Learned Magistrate acquitted the accused from the charge, only on the ground that the complainant failed to prove that the notice, as required under Proviso (b) to Section 138 of N.I. Act, has been served on the accused. Learned Magistrate, however, has categorically held that the accused taken Rupees one lakh from the complainant and issued the cheque in due course assuring repayment of the amount to the complainant.

4. Learned counsel, Mr. Roy, has submitted that the accused is the full-blood brother of the complainant and the clear name and address of the accused has been given in the complaint petition. The accused has appeared before the Court and he was allowed to go on bail. Notice was sent to the accused through a courier service in the address, as mentioned in the copy of the notice itself (Exbt. 5) and the accused received the same. Learned Magistrate has fa