ORAL JUDGMENT

1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order of acquittal dated 16.12.2023 passed by the learned Chief Judicial Magistrate, Rajpipla in Criminal Case No.2277 of 2016 acquitting the respondent-accused for the offence under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter).

2. It is the case of the complainant that, the complainant is the Cooperative Society registered under the Cooperative Societies Act and for the crop of the sugarcane the financial assistance was raised by the respondent- accused. The appellant-original complainant society has given Rs.2 Lakh for the cultivation of the sugarcane and for seeds and fertilizer gave Rs.40,000/-, in all Rs.2.40 Lakh was lent by way of loan on 13% interest by the complainant society. For repayment of the above amount, cheque bearing No.909877 was issued in favour of the complainant for the amount of Rs.3,70,341/-. On depositing the said cheque, it was returned with an endorsement of ‘insufÏcient funds’ and therefore, a private complaint came to be filed by the complainant before the competent Court. Learned trial Court, on recording the verification on 29.09.2016, issued the process upon the respondent-accused, making it returnable on 12.12.2016. Thereafter, the respondent- accused appeared on 20.10.2018 and his plea was recorded below Exhibit 5. Thereafter, again the respondent-accused remained absent therefore, an application below Exhibit 8 was filed praying to issue Non-Bailable Warrant against the respondent-accused. Upto 23.07.2021 the respondent-accused remained absent therefore, for the second time Non-Bailable Warrant was issued and ultimately the respondent- accused appeared on 20.04.2023 and has filed an application below Exhibit 15 praying to cancel the Non- Bailable Warrant, which was allowed with penalty of Rs.100.

2.1. On 23.05.2023 application below Exhibit 16 was filed by the complainant to produce the documentary evidence on record, which was produced by the complainant on 06.06.2023 below Exhibit 17 and for hearing of application below Exhibit 18 i.e. to give the exhibit of the complainant’s documentary evidence, the matter was posted on 20.06.2023. The application was allowed on a condition to prove the same on 20.06.2023 and thereafter the matter was posted on

05.07.2023.

2.2. On 19.07.2023 the respondent-accused was not present therefore, afÏdavit below Exhibit 27 was filed for the chief examination of the complainant and application below Exhibit 28 was filed to close the stage of the cross examination of the respondent- accused doe to absence of the respondent-accused. The matter was thereafter posted on 08.08.2023 and on that day application below Exhibit 29 was filed praying for exemption by the respondent-accused and Exhibit 30 was filed by the complainant praying for time. The matter was posted for hearing of Exhibit 28 on 06.09.2023. On 06.09.2023 the respondent- accused was absent and the complainant was also absent therefore, application below Exhibit 28 was rejected however, the stage of cross examination for the complainant was closed and the matter was posted on 13.09.2023 for recording further statement. On 13.09.2023 the respondent-accused was absent, however, on application of the learned advocate for the respondent-accused, the case was posted for recording further statement of the respondent-accused on 29.09.2023. Again, on 29.09.2023 application below Exhibit 33 was filed by the respondent-accused praying for exemption, which was rejected and the stage of further statement was also closed for the respondent-accused and the Non-Bailable Warrant was issued against the respondent-accused.

2.3. On 05.10.2023 an application below Exhibit 34 was filed by the complainant praying for reopening of his right to offer himself for cross examination by the respondent-accused, however, the same was rejected on the same day. On 05.10.20