JUDGMENT

With the consent of learned counsel for the parties, the matter is heard finally.

2. This appeal has been filed under Section 378(4) of the Code of Criminal Procedure, 1973 by the victim/complainant against judgment dated 01-02-2012 passed by the Second Additional Sessions Judge, Khandwa in Cr.A. No.230/2011 (M.P.) whereby the learned Court has reversed the judgment dated 01.10.2011 passed by Chief Judicial Magistrate, Khandwa in Criminal Case No.1050/2009, whereby the learned Court below convicted the respondent under Section 138 of N.I. Act and awarded sentence of 02 years. Vide impugned judgment learned Appellate Court set aside the judgment dated 1.10.2011 and acquitted the respondent from the aforesaid Section.

3. The brief facts of the case, as alleged by the appellant/complainant (in short "complainant") in the complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act") alleging that the respondent was in need of money in connection with his domestic need, therefore appellant gave a sum of Rs. 2.00 Lacs. Further the case of appellant is that respondent gave post dated cheque of Rs. 2.00 Lac dated 13.1.2009. On being presented the said cheque in the bank, the same got dishonoured due to the reason "insufficient fund". The accused/respondent did not return the amount even after receipt of demand notice on behalf of complainant.

4. The accused denied the allegations made in the complaint and stated that he has been falsely implicated in the case. His defence is that he lost his cheque book and the complainant by preparing a forged cheque, filed the complaint against him.

5. The learned Trial Court, after hearing the parties and considering the material on record, vide judgment dated 01.10.2011 convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced to undergo R.I. for 02 years and directed to pay compensation of Rs.2,22,000/- to the complainant under Section 357 (3) of Cr.P.C. with default stipulations.

6. Being aggrieved by the judgment passed by the learned Trial Court, the accused preferred an appeal. The learned appellate Court setting aside the judgment passed by the learned Trial Court allowed the appeal and eventually acquitted the accused of the offence under Section 138 of NI Act. Hence, the present appeal.

7. It is submitted by the learned counsel for the appellant/complainant that the learned Appellate Court erroneously acquitted the respondent and set aside the judgment of conviction passed by the learned trial Court. It is categorically stated in the complaint as well as in the chief examination in the form of affidavit of complainant that earlier an amount of Rs. 2 Lac has been given to the accused as advance and in turn, the accused issued a cheque bearing No.150226 dated 13.1.2009. Therefore, it is not the case of the complainant that on the same day when the amount has been advanced, the cheque has been issued and on the same day it has been submitted in the concerned Bank for payment. It is also submitted that accused has not challenged the execution of Exhibit P/1 Cheque and presumption under Sections 118 and 139 of Negotiable Instruments Act arises in favour of complainant. The due service of notice (Exhibit P/5) on the accused has also been established vide Exhibit P/6. The very fact has also not been challenged by the accused. Therefore, he prays for setting aside the impugned Appellate judgment dated 01.02.2012 passed in Cr.A. No.230/2011.

8. Per contra, learned counsel for the respondent/accused has submitted that the learned appellate court has in para 12 and 13 of its judgment has rightly held that the cheque has been received on the same day when the advance has been made i.e. on 13.1.2009 and on the same date, it has been submitted before the concerned Bank for its payment. Moreover, the complainant has not clarified how he has managed the fund which allegedly advanced to the accused. Therefore, no presumpti