JUDGMENT :

1. Present Criminal Revision is preferred against the judgment and order dated 31.08.2010 passed by learned Additional Sessions Judge Court No. 3, Banda in Criminal Appeal No. 14 of 2008 (Laxmi Narain Vs. Shiv Narain Gupta and another), under section 138 of Negotiable Instruments Act,1881 Police Station Kotwali, District-Banda, whereby learned Revisional Court set aside the judgment and order of sentence passed by the learned Civil Judge (S.D.)/A.C.J.M., Banda in Complaint Case No.31/1/2008 (Shiv Narain Gupta Vs Laxmi Narain) convicting and sentencing the respondent no.2 with rigorous imprisonment for two years and with fine of Rs. 2000/-.

2. Brief facts of the case are that revisionist instituted a complaint case against the respondent no.2 under Section 138 Negotiable Instruments Act, alleging therein that on 17.03.1996 respondents borrowed Rs. 40,000/-from the revisionist and against that amount, he gave a cheque dated 20.03.1996 of this amount to the revisionist. The aforesaid cheque was presented for payment in the bank, but it was dishonoured on account of insufficient of the amount in the account of the respondent No.2. Thereafter, a notice dated 16.08.1996 was given by the revisionist asking him to repay the amount within fifteen days, but respondent No.2 did not make the payment.

3. Learned Trial Court vide order dated 23.02.2008 observed that respondent no. 2 has committed offence under section Section 138 Negotiable Instruments Act, and after considering the material available on record awarded punishment as aforesaid.

4. Feeling aggrieved with the aforesaid judgment and the order of the conviction, the respondent Laxmi Narayan preferred Criminal Appeal No.14 of 2008 before the Additional Session Judge, Banda, which was decided by means of impugned order dated 31.08.2010 and appeal of the respondent no.2 was allowed and judgment and order of sentence was set aside.

5. Against the impugned order dated 31.08.2010, present criminal revision has been filed.

6. Heard Sri Harsh Narayan Singh, learned counsel for the revisionist and Sri Alok Kumar Gupta, Advocate holding brief of Sri Sanjay Kumar Singh, learned counsel for the informant and perused the record.

7. Learned counsel for the revisionist vehementally urged that learned Revisional Court has committed jurisdictional error in passing the impugned order. Revisionist has proved its case with oral and documentary evidence, on which basis learned trial court convicted the respondent. Learned trial court has appreciated the material available on record rightfully. The cheque was not given by the respondents to the revisionist as collateral security against the amount borrowed by him while it was given to discharge of debt. Revisionist presented the cheque before Tulsi Gramin Bank on 12.08.1996 i.e. well within time, but it was dishonoured due to insufficiency of the fund in the account of the respondent. Upon receiving the information, revisionist served notice dated 16.08.1996 to the respondents. Respondent inspite of proper service of notice upon him, failed to comply the requirement as contained in the notice and did not pay the amount to the revisionist therefore, complaint under Section 138 Negotiable Instruments Act,1881 was filed by the revisionist.

8. Learned counsel for the revisionist further submitted that learned trial court has rightly allowed the delay condonation application of the revisionist, since sufficient reason was given by the revisionist in his application. It is also submitted that respondents moved an application to recall the order of delay condonation but it was rightly rejected by the trial court. Learned Revisional court although has observed that complaint filed by the revisionist was time barred, but it rightly held that no benefit of this fact could be given to respondents since he did not prefer any legal remedy against the order of trial court passed on his application to recall order for delay condonation.

9. It is further s