Point of Law : Learned Court below committed no error or mistake while holding that there was no satisfactory explanation in condoning the delay of 350 days in lodging complaint.

JUDGMENT :

Heard Mr. S. Banik, learned counsel for the appellant. Also heard Mr. J. Borah, learned counsel for the respondent No. 1 and Mr. P. S. Lahkar, learned Additional Public Prosecutor for the State respondent No. 2.

2. This is an appeal under Section 378 (4) of the Code of Criminal Procedure, 1973, against the judgment and order dated 25.11.2009, passed by the learned Additional Chief Judicial Magistrate, Cachar, Silchar, in CR Case No. 2802/2006, acquitting the accused from the said case.

3. The brief facts of the case is that the respondent No. 1, as an accused, took a loan of Rs. 5,00,000/-(Rupees five lakhs) only from the appellant by executing a hand note with an assurance to repay the amount within December, 2004. But the accused failed to repay the loan amount within the stipulated period and issued another hand note in the month of March, 2005 stating that he would repay the loan amount within 1 (one) month. But, even after several request made by the appellants, the accused did not make any payment and thereafter he issued 5 (five) numbers of account payee cheques to the appellant for the total loan amount of Rs. 5,00,000/-. The appellant presented the said 5 (five) cheques in UBI, Silchar Branch, on 21.06.2005. But on 12.07.2005, the appellant was informed that the said cheques were dishonoured due to insufficient fund and returned those cheques vide return memo dated 28.06.2005. The appellant informed about the dishonoured of cheques to the accused/respondent, but the accused did not respond and hence, the appellant had to served a legal notice to the accused through Registered post on 15.07.2005 making a demand for the said loan. The notice was issued within 15 (fifteen) days from receipt of the information of dishonoured of cheques. But, on 18.07.2005, the accused refused to accept the notice and on 22.07.2005, the parcel containing the notice was returned to the appellant. The accused, however, did not pay any amount even after expiry of 15 (fifteen) days from his refusal to accept the legal notice sent by the appellant.

4. Thereafter, the accused, along with one of his relative, met the appellant at Silchar in middle part of August, 2005, requesting him not to file any complaint and had promised the appellant that he would refund back the loan amount of Rs. 5,00,000/-to the appellant within 1 (one) years in 2 (two) installments, the first installment to be paid in the month of April, 2006 and the second installment in the month of July, 2006 and hence, the appellant did not filed any complaint within the period of limitation with the bonafide belief that the accused would repay the loan amount. But, even after the expiry of a year, the accused in the month of April, 2006 took the plea of his illness and assured that he would make the payment in the month of July, 2006. But, in the month of July, 2006, he told his relatives that he would not make any payment to the appellant and for which, the appellant filed a complaint case in the Court of learned Chief Judicial Magistrate, Cachar, Silchar, on 17.08.2006. Thereafter, the complaint was transferred to the Court of learned Judicial Magistrate First Class, Cachar, Silchar, and Court accordingly made an enquiry under Section 200 Cr.P.C. and vide order dated 15.09.2006, the process was issued under Section 138 of the N.I. Act against the accused by condoning the delay. But, subsequently, the case was transferred to the Court of learned Additional Chief Judicial Magistrate, Cachar, Silchar.

5. During trial, the appellant examined 3 (three) witnesses including himself and the Manager of UBI, Silchar Branch, in support of his case and also exhibited some documents through the witnesses. The accused was also properly examined under Section 313 Cr.P.C., but the accused did not adduce any evidence in support of his case.

6. The accused/respondent also filed a criminal petition, being Criminal Petition No. 79/2009, before this Court assailing the order dated 28.11.2008 and