ORAL ORDER

1. This is an appeal filed by the appellant-original complainant under Section 378 of the Code of Criminal Procedure, challenging the judgment and order of acquittal dated 18.02.2022 passed by learned 26th Additional Chief Judicial Magistrate, Vadodara in Criminal Case No.13362 of 2016. By the said judgment and order, the learned Magistrate has proceeded to acquit the respondent No.3- original accused for the offence alleged under Section 138 of the N.I. Act.

2. The brief facts, leading to filing of the present appeal as contended by the appellant-original complainant, are reproduced as under:

2.1. The Appellant-original complainant herein is a permanent resident at the address mentioned in cause title since last 21 years and has been doing business of chemical trading under the name and style of “Kalpesh Chemicals” since 1992.

2.2. Respondent No. 3-original accused No.2 is the proprietor/authorized signatory of Khodiyar Plastic (Respondent No.2-original accused No.1) firm, involved in the manufacturing business of plastic products at the abovementioned address. Close friendship developed between the Appellant and Respondent, when Respondent No. 3 became neighbour of the Appellant in year 2012 and soon they started doing financial transactions with each other, guided by mutual trust and assurance.

2.3. Respondent No. 3 approached the Appellant with a request of financial aid to clear his financial debt and also made proposal to the Appellant for making investment in his firm. He thereby offered appellant to become partner in his manufacturing business of plastic bags/products. Appellant therefore agreed to extend financial help of Rs.20,00,000/- to the Respondent which was paid through cheque as well as in cash, in the month of February/March, 2013.

2.4. In June, 2013, the Appellant had further lended sum of Rs.10,00,000/- through cheque as well as cash to the Respondent No. 3 for making purchase of machinery (New Tupin Plant) required for manufacturing plastic at Respondent Proprietary Firm.

2.5. Upon the proposal made by the Respondent, on 13.08.2013 a Partnership Firm in the name of Om Plastic was started between Appellant's Wife namely, Rita Thakkar & Respondent No. 3 as Partners, on the location of Respondent Proprietary Firm by replacement. The Partnership deed was executed on a stamp paper however it was neither notarised nor registered. And the said Partnership Firm is involved in the same manufacturing business. Even Municipal Tax has been paid in the name of the said Partnership Firm.

2.6. In the year 2014, Respondent No. 3 approached the Appellant with the idea of making purchase of neighbouring factory, being a decent place to conduct manufacturing business, from the owner of the said factory namely, Mr. Kantilal Panchal, and hence a total investment of Rs.81,00,000/- was made by the Appellant to purchase factory premise as well as for making necessary construction therein. On 17.01.2014, a Partnership Deed was executed between Respondent No. 3 and Kantilal Hiralal Panchal.

2.7. In October, 2014, Respondent No. 3 took sum of Rs. 34,00,000/- from the Appellant for making purchase of raw material for production of different varieties of plastic bags and after the production and sale, a profit of approximately Rs. 14,00,000/- to Rs. 16,00,000/- was accrued. However, after due collection of funds, the said profit was spent by the Respondent and when this came to the knowledge Appellant, the Respondent stated that the said funds have been used by him to clear his debt. And thereby the Respondent broke the trust of Appellant by committing fraud. Also, after waiting for significant period of time the Appellant started demanding his money back from the Respondent but it was to no avail.

2.8. After such turn of events, various attempts were made for the settlement of issues between the Appellant and Respondent, by the Appellant. In a settlement meeting, former partner in factory Mr. Kantilal Panchal, Appellant's Advocate