B.B. Mangalmurti, J.

1. Instant application has been filed seeking leave to appeal against the judgment dated 06.05.2017 passed in C.P. Case No. 413 of 2015/Trial Case No. 748 of 2017 by Sri Vimal Johnson Kerketta, Judicial Magistrate, 1st Class, Dhanbad by which the accused is acquitted under Section 138 of the Negotiable Instrument Act.

2. The short fact of the case is that complainant Dinesh Agarwal @ Dinesh Kumar Agarwal and accused Ravi Kant Prasad were having cordial relationship when accused asked for Rs. 1,20,000/- as friendly loan from the complainant with a promise that it would be returned within one month. Believing the assurance, complainant gave Rs. 1,20,000/- on 23.06.2014. The further case is that when the complainant after one month requested for return of the loan amount, an account payee cheque dated 24.07.2014 drawn on PNB, Nirsa, Dhanbad for Rs. 1,20,000/- was handed over. When the complainant presented the cheque for its encashment, it was dishonoured for the reason 'insufficient fund' vide memo dated 11.10.2014 and the complainant was informed by his banker on 19.12.2014. Thereafter, complainant made a telephonic call and informed about the dishonouring of the cheque but he refused to refund the amount. The complainant dispatched demand notice to the accused through registered post with acknowledgement through his lawyer on 05.01.2015 and the same was served upon him. In spite of the service of notice, accused neither replied nor paid the cheque amount to the complainant within stipulated period, giving rise to lodgment of this case under Section 138 of the Negotiable Instrument Act being Complaint Case No. 413 of 2015.

3. After finding prima facie case against accused, substance of accusation was explained to him. The court, after recording the evidence of complainant, marked 04 exhibits in this case whereas the defence has not produced any witness nor exhibited any document.

4. The court after appreciation of the evidences adduced in the case found that all the ingredients and provisions of Section 138 of the Negotiable Instrument Act are not satisfied and the complainant has not been able to prove his case against the accused beyond the shadow of all reasonable doubts. The court thereby did not held the accused Ravi Kant Prasad guilty and acquitted him of the charge under Section 138 of the Negotiable Instrument Act.

5. Learned counsel appearing on behalf of the petitioner while assailing the judgment of acquittal submitted that without proper appreciation of the evidences the trial court has acquitted the accused. She further submitted that the court has failed to appreciate that the petitioner was the holder of the cheque in question in due course and has exhibited the cheque return memo as well as the legal notice but the trial court failed to appreciate the fact that there was no rebuttal from the side of accused person.

6. Learned A.P.P. appearing on behalf of the State submitted that the trial court has considered the materials brought on behalf of complainant but found that the cheque was dis-honoured on 11.10.2014 and information was received by the complainant on 19.12.2014 but it is not proved by the complainant whether notice in writing to the drawer of the cheque was sent within 30 days of the receipt of information by the complainant from the bank regarding return of the cheque as unpaid or not. The complainant has only identified the photocopy of postal receipt dated 05.01.2015 and as the same is not sufficiently proved, the same is not admissible in evidence. He also submitted that the legal notice was brought on record but complainant has failed to prove how the notice was sent to the accused or even the notice was sent to the accused or not. The court has also held that the complainant has not corroborated the fact of advancement of friendly loan which, as per his admission, was borrowed from his mother and wife but both were not examined as witnesses in this case. Therefore, the