Mr. Inderjit Singh, J.:- Applicant-Parkash Saini has filed this application under Section 378(4) Cr.P.C. seeking permission for leave to appeal against respondent Bhupinder Singh Jolly, challenging the impugned judgment dated 15.12.2010 passed by learned Judicial Magistrate Ist Class, Rupnagar, whereby the accused-respondent was acquitted.

2. It is mainly stated in the application that accompanying appeal is being filed which is likely to succeed on the grounds taken therein. It is also stated in the application that the judgment passed by learned JMIC, Rupnagar is totally based upon conjecture and surmises, whereas the positive evidence brought on record against the accused-respondent has been totally brushed aside causing a severe miscarriage of justice. It is, therefore, prayed that leave to appeal be granted.

3. Notice of motion was issued and learned counsel for the respondent appeared and contested the application.

4. I have heard learned counsel for the parties and have gone through the record.

5. As per the record, the complainant Parkash Saini filed a complaint against accused Bhupinder Singh Jolly under Section 138 of The Negotiable Instruments Act. As per complainant’s version, accused Bhupinder Singh Jolly was in the business of sending people abroad through visitor Visa/Student Visa/Immigration Service etc. The accused approached the complainant in the first week of January, 2006 to send him to Italy on a Visitor Visa and in lieu of that, accused demanded ‘5,00,000/- from the complainant and the same was received by the accused from the complainant in the presence of S. Harbans Singh in four installments in cash i.e. ‘2,85,000/- on 16.01.2006, ‘77,000/- on 24.02.2006, ‘50,000/- on 10.05.2006, ‘88,000/- on 28.06.2006, total ‘5,00,000/-. The accused also issued photostat copies of his Election Commission Identity Card and Permanent Account No. and identity card to the complainant. The accused also received the original passport of the complainant along with his original education certificate, proof of residence and assured the complainant to send him to Italy on a Visitor Visa in the last week of July, 2006 by all means in the presence of S. Harbans Singh. The complainant approached the accused in the third week of July, 2006 to verify the status of his case but the complainant was shocked to see that even after receiving ‘5 lacs from the complainant, the accused failed to satisfy him and started telling stories to him. In the first week of August 2006, the complainant again approached the accused to verify the status but accused showed his inability to send the complainant to Italy and issued cheuqe bearing No.160026008/207609 for ‘5 lacs dated 25.08.2006 in favour of the complainant and assured that the said cheque shall be encashed by all means but on presentation of the said cheque for encashment, it was returned back unpaid with the remarks ‘funds insufficient’. Legal notice was served upon the accused. When the amount was not paid, then the complaint was filed within time.

6. After the evidence produced by the complainant, statement of accused was recorded under Section 313 Cr.P.C., in which he stated that he had never received payment from the complainant. Neither he knew the complainant nor his father Harbans Singh. He has also denied that he had ever met the complainant. He has stated that he was working as an employee with the office which used to send the persons for permanent immigration to Canada, Australia, New Zealand and USA and that office did not use to send the persons for visitors Visa. He has stated that permanent immigration to Italy was not allowed as per law. He has also stated that the complainant had never met him in the office and he had not received any documents or passport from the complainant. He has stated that he was not at Chandigarh but was at Bhubneshwar in connection with some official, work, when the complainant as alleged had paid ‘5 lacs to the accused on 10.05.2006. T