ORAL JUDGMENT

1. This appeal is filed under Section 378(4) of the Code of Criminal Procedure by the original complainant. The Company through his authorized signatory has challenged the judgment and order dated 23.01.2011 passed by the learned 14th Additional Chief Judicial Magistrate, Bhavnagar in Criminal Case No.5270 of

2008, whereby the present respondent No.1 – original accused was acquitted for the offence alleged under Section 138 of the Negotiable Instruments Act.

2. In brief, the case put forward by the original complainant before the learned Magistrate was that:

2.1 The complainant Company is engaged in the finance of lending loan for purchase / sale of two wheelers. The respondent No.1 – original accused No.1 was engaged as recovery agent who was admitted to collect the installment amount towards such loan, as well as for recovery of the amount outstanding against loan, for which separate receipt books were issued. It is the case of the complainant that even written agreement was also entered into between the parties. According to the complainant, there existed a master servant relationship between the complainant and the accused.

2.2 During such engagement, the complainant Company had addressed a letter dated 31.03.2008 to the accused demanding deposit of the money recovered by the accused on behalf of the Company. Since the amount of Rs.86,784/- along with interest was to be realized from respondent No.1, the respondent had given a cheque of such amount on 31.07.2008 drawn in the name of the Company. While issuing such a cheque, it was assured that the amount shall be realized as and when the cheque is presented.

2.3 Upon such assurance, the complainant Company had deposited the aforesaid cheque on 01.08.2008, however, the same was returned back with an endorsement of “stop payment” as reported by the concerned bank. In such circumstances, the complainant Company was constrained to initiate the proceedings under Section 138 of the Negotiable Instruments Act.

2.4 The legal notice was issued upon the respondent No.1 on 26.08.2008, which was duly served upon the respondent on the known address. However, the respondent had failed to respond to such notice or to make any payment as demanded in notice within the prescribed period of 15 days. The cause of action arose for the complainant Company to approach the Court of learned Magistrate by lodging the complaint under Section 138 of the Negotiable Instruments Act. Such a complaint was registered as Criminal Case No.5270 of 2008.

3. Noticing the prima facie case and after recording the verification of the then authorized officer of the complainant Company, the trial Court had called upon the respondent – originally accused by issuing summons under Section 207 of the Code of Criminal Procedure. The accused appeared before the learned Magistrate and had denied the case of the complainant. The plea of the accused was recorded at Exhibit 18 and the Court thereafter proceeded with the summary trial.

3.1 During the course of trial, the original complainant has led oral as well as documentary evidence. The details of such evidence brought on record are as under:

DOCUMENTARY EVIDENCE :