The complaint under Section 138 of the Negotiable Instruments Act is not maintainable if the cheque was obtained as security and subsequently misused. The prosecution must prove the ingredients of Section 138 beyond reasonable doubt.

Z.K. Saiyed, J. - The appellant-original complainant has preferred the present appeal under Section 378(4) of the Code of Criminal Procedure, 1973 against the Judgment and Order of acquittal dated 30th May 2003 passed by the learned Metropolitan Magistrate, Court No.5, Ahmedabad, in Criminal Case No.188 of 2001 for the offence punishable under Section 138 of the Negotiable Instruments Act,1881 by which the learned Judge was pleased to acquit the opponent No.1-original accused of the charges levelled against him.

2. The short facts of the complainant is that the present appellant-original complainant is a partner of Anand Trading Company and is dealing in business of Tea. It is the case of the complainant that the opponent No.1-original accused originally serving with him, but subsequently has started his own business in the name and style of "Mahadev Sales Agency". The opponent No.1- original accused was the sole proprietor of the said Mahadev Sales Agency. The opponent No.1-accused used to purchase tea and tea-leaves from the present appellant-original complainant and thus, they known to each other. It is the case of the appellant-original complainant that he has to take Rs. 25,000/- from the opponent No.1-original accused towards legally enforceable dues. It is the case of the complainant that in lieu of outstanding amount of Rs. 25,000/-, the opponent No.1-accused had issued an A/c. Payee cheque bearing No.009551 dated 01st January 2001 in the name of complainants firm drawn on The Navnirma Co-operative Bank Limited, Asarva, Ahmedabad by making his signature as a Proprietor of Mahadev Sales Agency. The said cheque was issued by the opponent No.1-original accused with a promise and faith that the said cheque will be honoured on its presentation. It is the case of the present appellant that however, upon presenting the said cheque for clearing on 11th January 2001 with his Banker i.e. Development Credit Bank Limited, Relief Road, Ahmedabad, the same was dishonoured due to reasons "Payment stopped by drawer". The said fact came to the notice of the appellant by return memo of his Banker dated 12th January 2011. It is further the case of the complainant that therefore, the appellant-original complainant informed the opponent No.1-original accused about the fact that cheque was dishonoured, the opponent No.1-original accused gave evasive reply and tried to escape from his liability. Therefore, the appellant-original complainant issued a statutory notice dated 22nd January 2001 through his advocate by Registered Post A.D. As well as by UPC, which is duly served upon the opponent No.1-accused. Though the said notice was served upon the opponent No.1-original accused, neither the opponent No.1 has replied the notice nor repaid the cheque amount and therefore, appellant-original complainant filed a criminal complaint against the opponent No.1-original accused under Section 138 of the Negotiable Instruments Act, 1881 in the Court of learned Metropolitan Magistrate, Court No.5, Ahmedabad.

3. Thereafter summons was issued against the opponent No.1-original accused and as the opponent No.1-accused has not pleaded guilty, evidence on behalf of the appellant-complainant was exhibited. The prosecution has produced oral as well as documentary evidence in support of the case. After filing closing pursis, further statement of the opponent No.1-accused was recorded under Section 313 of the Code of Criminal Procedure, 1973. In his statement, the opponent No.2-accused has denied the case of the prosecution and claimed to be tried.

4. Thereafter, trial was conducted before the learned Judge. To prove the case of the prosecution, prosecution has produced oral as well as documentary evidence. After considering the oral as well as documentary evidence, the learned Judge was pleased to acquit the opponent No.1-original accused from the charges alleged against him by Judgment and Order of acquittal dated 30th May 2003.

5. Being aggrieved and d