The central legal point established in the judgment is the requirement for the prosecution to establish entrustment of property and the basis for issuance of cheques to prove offenses under Section 406 of the Indian Penal Code and Section 138 of the Negotiable Instrument Act.

1. Heard learned counsel for the petitioner and the State.

2. Learned Trial Court of Judicial Magistrate 1st Class, Jamshedpur convicted the accused, opposite party no.2 and 3 (hereinafter referred as private opposite parties) in Complaint Case being C/1-Case No. 55 of 2004/T.R. No. 514 of 2005 by the judgment dated 13.6.2005 for the offences under Section 406 of the I.P.C and Section 138 of the Negotiable Instrument Act and sentenced them to undergo simple imprisonment for 1 year with a fine of Rs.2 lakhs and in default thereof, to undergo simple imprisonment for 3 months. Being aggrieved, the accused convict went in appeal before the Additional Sessions Judge, FTCIII, Jamshedpur in Criminal Appeal No. 94 of 2005. The learned Appellate Court acquitted the accused/private opposite parties herein by the impugned judgment dated 5.10.2010 against which the complainant/petitioner herein seeks leave to appeal through the instant Cr. M.P.

3. There has been a delay of 3 days in filing the instant petition. We have however heard learned counsel for the petitioner and State on merits of the challenge to the impugned judgment as well.

4. The case of the parties as borne out from the pleadings of the record and on perusal of the judgments are referred as under:-

The complainant alleged issuance of cheque no. 789680 dated 25.10.2003 for Rs.25,000/-, cheque no.789679 dated 30.10.2003 for Rs.25,000/-and cheque no. 789681 dated 5.11.2003 for Rs.50,000/-drawn on Punjab National Bank, Jamshedpur against A/C No CA110 on the part of the accused Vijay kumar Srivastava, opposite party no.2 against friendly loans of Rs.50,000/-and Rs.1 lakhs advanced to the accused/opposite party no.2 and opposite party no.3, his mother respectively on 02.08.2003 and 09.09.2003 as they were in need of money for their business. On presentation through IDBI Bank Ltd, Jamshedpur, the cheques were dishonoured on 28.11.2003 due to insufficient funds. Complainant issued legal notice demanding money of the dishonoured cheques within 15 days. Thereafter it was replied by the accused/opposite party no.2 through his lawyer stating that he had received loan of only Rs.1 lakh and not Rs.1.50 Lakh and had promised to repay the loan of Rs.1 lakh within two months. Since the payments were not made within the statutory period, complaint case was filed in the Court of Chief Judicial Magistrate, Jamshedpur. After preliminary inquiry cognizance was taken under Section 138 of the N.I. Act and section 420 of the I.P.C against the accused/opposite party no.2 and cognizance of the offence under Section 420 of the I.P.C was taken against opposite party no.3. Learned Trial Court framed additional charge under Section 406/34 of the I.P.C against both the accused whereas charge under Section 138 of the N.I. Act was framed only against opposite party no.2, Vijay Kumar Srivastava. After the accused persons pleaded not guilty the trial commenced.

5. The complainant examined witness no.1, Satya Ranjan Sarkar, complainant himself as witness no.2 and S.A. Fajal as witness no.3. The documentary exhibits are money receipt as Ext.1, another money receipt as Ext.2, Ext.3 series are 3 cheques allegedly issued by the opposite party no.2 , Ext.4 is return memo from the bank, Ext. 5 is the legal notice sent by the complainant, Ext.6 is the postal receipt and Ext.7 is the acknowledgement receiving legal notice. On behalf of the accused persons, opposite party no.2 had examined himself as D.W.1. No documentary evidence was brought on record on behalf of the accused persons. After conclusion of the trial and conviction as aforesaid, the aggrieved opposite parties preferred appeal, wherein they have been acquitted by the learned Appellate Court.

6. Learned Appellate Court framed two issues to be answered:-

(i) whether offence under section 406 of the Indian Penal Code is made out in the light of the evidence and the material available on the record,

(ii) whether appellant no. I can be held liable for the of