1. This Criminal Appeal is filed by the appellant/complainant against the order of acquittal passed by the learned IInd Metropolitan Magaistrate, Egmore, Chennai dated 31.10.2008 made in C.C.No.155 of 2007.

2. Brief case of the appellant:

The complainant company JAY AR Enterprises is a partnership firm. The appellant/accused M/s.Scrapt Traders are dealers in ferrous non ferrous and M.S.C.I. Rooling Scraps and Electrical Goods. Air conditioning plant, Machinery item jute and Hessian Baga etc and interest to procure iron ore fines for the purpose of exporting to overseas countries and for that purpose, the complainant paid Rs.50,00,000/- that the iron ore fines was not of expected quality, the arrangement made with the complainant and the appellant/accused was broken and the appellant/accused has released position and the appellant/accused agreed to send the amount of Rs.50,00,000/- to the complainant as such the appellant/accused has chosen to issue the cheque bearing No.169002 dated 10.4.2006 drawn on State Bank of India, Subodh mullick square, Kolkkotta towards the return of the amount. The said cheque was presented for realization in the complainant bank Indian Overseas Bank, SME Branch Chennai on 5.10.2006 and the same was returned by 7.10.2006 on the ground of funds insufficient. The complainant bank forwarded a debit note on 14.10.2006. On 8.11.2006 a statutory notice was issued to the appellant/accused and the same was received by the appellant/ accused on 11.11.2006. The accused has neither sent reply on tenable ground nor made any payment. Hence the complaint preferred complaint before the learned IInd Metropolitan Magistrate in C.C.No.155 of 2007. During trial the appellant examined himself as PW1 and marked Exhibits-P1 to P12. On the side of the respondent/accused Exhibit D1 and D2 were marked and no witness was examined on their side. The learned trial Court after appreciating the evidences acquitted the respondent/accused under Section 138 of the Negotiable Instrument Act. Hence this appeal.

3. The learned counsel for the appellant submits that the trial judge on having found that the Exhibit P1 cheque even though has its face value of Rs.50,00,000/- has its cause of action to prosecute for the lesser amount, taking into account the part payment made by the appellant/accused after the offending cheque was issued in lieu of the earlier liability of Rs.50,00,000/- i.e. to say cause of action lies for prosecution for the balance amount of Rs.30,00,000/- passing order of acquittal is unwarranted and unjustified. The order of acquittal is liable to be set aside.

4. The learned counsel for the appellant submits that after arriving at a finding that the complainant satisfied each and every part of cause of action and further the appellant/accused is liable to pay Rs.30,00,000/- under the offending cheque and the order of acquittal as holding that the demand notice Exhibit P4 is bad in law. It is unjustified and liable to be set aside.

5. The learned counsel for the appellant submits that the defence by the appellant/accused that the Exhibit P1 cheque is forged one on having filled up the date of the cheque on the cheque and negotiated further for realizing amount in furtherance to the defense, on receipt of notice Exhibit P4 the appellant/accused went and filed a complaint before the 17th Metropolitan Magistrate, Kolkotta under section 467 and 471 of IPC and at last the accused chosen to withdraw the complaint in Exhibit P12 series and thereby left the defence pursued. This being so, the order of acquittal is clearly erroneous and it is liable to be set aside.

6. The learned counsel for the appellant submits that a sum of Rs.30,00,000/- the accused is liable to pay to the complainant and said that the appellant/accused is not liable to be furnished under section 138 of the Negotiable Instrument Act . The order of acquittal is liable to be set aside and appellant/accused need be convicted in the facts and circumstances