Insufficiency of evidence to prove the essential elements of the offense under Section 138 of the N.I. Act.

JUDGMENT

1. Heard learned counsel for the complainant appellant and learned counsel for the State.

2. The complainant appellant is aggrieved by the impugned Judgment of acquittal dated 5 th December 2016, passed by the learned Addl. Sessions Judge-I, Ramgarh, in Criminal Appeal No. 16 of 2015, whereby the appeal filed by respondent No.2, challenging her conviction and sentence in the Judgment and Order dated 20.1.2015, passed by the learned Judicial Magistrate, 1 st Class, Hazaribag, in Complaint Case No. 1145 of 2013 / T.R. No. 472 of 2015, finding her guilty, and convicting and sentencing her for the offence under Section 138 of the N.I. Act, has been set aside by the Appellate Court below, allowing the appeal and acquitting the respondent No.2 of the charge.

3. The impugned Judgment shows that according to the complainant appellant''s case, both the parties were in good relationship and the private respondent had taken a friendly loan from the complainant appellant to the tune of Rs. 2,00,000/- on 9.3.2013 for the purpose of family function, which was managed and given to the respondent No.2 by the complainant appellant. The respondent No.2 promised to return the amount by 10.4.2013 and she issued a Cheque No. 969797 dated 10.4.2013, for the amount of Rs. 2,00,000/- in favour of the complainant appellant. The said cheque was presented by the complainant in the Bank on 18.5.2013, which was dishonored on account of "insufficient fund" and information was given to the complainant. The complaint sent a legal notice to the accused respondent on 23.5.2013 through registered post, which was received by the respondent No.2 on 27.5.2013, and after the lapse of statutory period, when no payment was made, the complaint was filed by the complainant.

4. The impugned Judgment passed by the Appellate Court below further shows that the complainant had examined only herself in support of her case and there was no other witness to show that Rs. 2,00,000/- was given to the respondent No.2, except the ipse dixit of the complainant herself. Even the husband of the complaint did not come forward to depose the same, who was the person, who was said to have withdrawn the money from the Bank and given it to his wife, which was claimed to have been delivered at the house of the respondent No.2. There was no Bank statement showing the withdrawal of Rs. 2,00,000/- by her husband. This apart, the impugned Judgment further shows that the cheque was though signed by the accused respondent No.2, but it was found to be filled up in different handwritings and different inks. Exhibit-A and Exhibit-A/1 were proved before the learned Trial Court below to show that information was given to the police about the missing of the cheque along with one mobile on 24.2.2013, stating that they had been misplaced on 23.4.2014. Exhibit-B proved in the Court below, showed that the respondent had given the instructions to the Bank to stop the payment of the missing cheque. Vide Exhibit-2 proved in the Court, it was found that the Bank had informed that insufficient fund was inadvertently quoted for the reason of bouncing of the cheque, rather, the reason for nonpayment of the cheque was the ''stop payment instruction''. On the basis of these facts, the Court below found that the cheque was presented in the Bank much after the information was given to the Police Station about the missing of the cheque, and the instruction for non-payment was given to the Bank. Taking these facts into consideration, the learned Appellate Court below has acquitted the respondent No.2.

5. Aggrieved by the aforesaid Judgment of acquittal, the complainant appellant has filed the present acquittal appeal. I.A. No. 660 of 2017 has also been filed, seeking leave to appeal against the impugned Judgment of acquittal.

6. Learned counsel for the appellant has submitted that the impugned Judgment of acquittal passed by the Appellate Court below is absolutely illegal and cannot be sustained in the eyes of