(Surinder Singh, J.) - The appellant has assailed the acquittal of the respondent, passed in Criminal Case No. 65/3 of 2000/96, decided on 3.3.2001 by the learned Chief Judicial Magistrate, under Section 138 of the Negotiable Instruments Act, in short “the Act”.

2.In brief, the facts giving rise to the instant appeal are that M/s Wadhwa Pharmochem (Pvt.) Limited, Kala Amb had obtained cash credit financial facility from the appellant bank, as such, its raw material, semi-finished and finished goods stood hyptheticated with the bank aforesaid. The respondent Company was duty bound to deposit its sale proceeds in the cash credit limit. According to the appellant, M/s Wadhwa Pharmochem Pvt. Ltd. had sold their products to the respondent vide Bill No. 18-A for Rs. 3,50,003.50 paise and vide Bill No. 20-A for Rs. 4,43,535.30 paise, total Rs. 7,93,558.80 paise on 3.2.1996. The goods were dispatched through the transport Company and the documents were routed through the appellant-Bank. The goods could not be obtained by the respondent without obtaining the documents from the appellant-Bank on the deposit of the requisite amount, but it is alleged that on the request of M/s Wadhwa Pharmochem Pvt. Ltd., the appellant bank purchased the aforesaid Bills amounting to Rs. 7,93,538.80 paise and made 75% payment to the Company against the said bills. On his assurance that the bills would be retired by the respondent before taking the delivery of the goods from the Transport Company, but the respondent managed the delivery of the goods from the Transport Company in connivance with the consigner Company M/s Wadhwa Pharmochem Pvt. Ltd. and sent the cheque No. 978960 for Rs. 7,93,538.80 paise on 8.6.1996 drawn in the Indian Overseas Bank, New Delhi in the name of M/s Wadhwa Pharmochem being the price paid against two bills with the assurance that the same would be honoured by the appellant bank as and when it would be presented. The cheque was delivered by M/s Wadhwa Pharmochem to the appellant bank on 10.6.1996 for collection. Since the appellant-Bank had already purchased the bills for the cheque amount by depositing 75% of the amount in the account of M/s Wadhwa Pharmochem, the appellant-Bank became the holder of the cheque in question for consideration in due course. The cheque aforesaid was sent for the collection to the Indian Overseas Bank, but it was received back by the appellant-Bank with the endorsement “not arranged for” as there was no money to honour the cheque in the accounts of the respondent.

3.Faced with the aforesaid situation, the appellant-Bank issued a statutory notice of 15 days to the respondent on 10.7.1996 and requested him to pay the cheque amount. Since the respondent failed to repay the amount to the appellant-Bank, hence a complaint was filed under Section 138 of the Act in the Court of Additional Chief Judicial Magistrate, Nahan on 16.8.1996.

4.After the preliminary evidence and finding a prima facie case against the respondent, the summones were issued. The respondent Anil Kumar Sharma being the proprietor of M/s Crown Traders was put to notice of accusation for the offence aforesaid. He denied the allegations and claimed trial.

5.The appellant-Bank led its evidence, respondent was examined under Section 313 Cr.P.C. and led his evidence. At the end of trial, the respondent was convicted for the offence charged and sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 8 lac. In default of payment of fine, he was directed to undergo further rigorous imprisonment for one year.

6.Feeling aggrieved and dissatisifed by the impunged judgment of conviction and sentence, the respondent challenged it in appeal before the learned Sessions Judge. During the pendency of the appeal, the respondent filed an application for additional evidence under Section 311 Cr.P.C. contending that the cheque in question was for consideration and sought to produce some documents