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Judgment
The appellant has preferred this appeal under Section 378(4) of the Criminal Procedure Code against the judgment and order of acquittal dated 28.02.2006 rendered by the learned Judicial Magistrate, First Class, Veraval in Criminal Case No.582 of 2003. The said case was registered against the respondent-original accused for the offence under Section 138 of Negotiable Instruments Act.
As per the case of the appellant-complainant, the respondent-accused took goods of timber on credit from him worth Rs.8,89,826/. The respondent-accused initially paid Rs.2,25,000/-and thereafter, he gave 14 cheques of different dates aggregating Rs.64000/- drawn on Dena Bank, Kalavad (Shitla) to the appellant-complainant. On 18.02.2003, the appellant-complainant presented all 14 cheques before Veraval Mercantile Co-operative Bank, Veraval, out of which, one cheque dated 16.08.2002 was returned with an endorsement as "it is out of date", whereas remaining 13 cheques were returned with an endorsement as "limit exceed" and thus, all the cheques were returned back to the complainant without being realized. On 26.02.2003, the appellant was informed about the said fact by the Bank. On 07.03.2003, the appellant issued notice within the prescribed period under the provisions of the Negotiable Instruments Act to the respondent, however the respondent did not give any reply nor paid any amount to the appellant. Therefore, under the provisions of Section 138 of the Act, the appellant-complainant was constrained to file the private complaint against the respondent accused in the court of learned Judicial Magistrate, First Class, Veraval.
After registration of the complaint, the summons was issued to the respondent and the respondent remained present. Thereafter, preliminary statement of the respondent was recorded in which the respondent denied the allegation levelled against him and requested to try the case.
3.1 In order to bring home the charges against the respondent person, the complainant has produced 3 oral evidence and 50 documentary evidence.
3.2 Thereafter, after filing closing purshis by the complainant, further statement of accused was recorded. The accused denied the case and submitted that a false case is filed against him.
3.3 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondent accused.
3.4 Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 28.02.2006 rendered by the learned Judicial Magistrate, First Class, Veraval in Criminal Case No.582 of 2003, the appellant has preferred the present appeal before this Court.
Learned advocate for the appellant-complainant has taken this Court through the entire record & proceedings as well as impugned judgment and order. He argued that the learned trial court, solely based upon the statutory notice, dismissed the entire complaint. Indisputably, according to his submission, in all 14 cheques were issued totaling to Rs.64,000/-, though due to business transaction, in the statutory notice, the complainant demanded Rs,6,64,826/- and consequently therefore, for that simple reason, the complaint came to be dismissed which is not in accordance with law according to his submission.
Learned advocate for the respondent-accused pointed out that the statutory notice itself was defective. He argued that in view of clear provisions of Section 138 of the Act, since the notice does not contain the amount of Rs.64000/- and demanding different dues of Rs.6,64,826/-, the learned trial court rightly dismissed the complaint, which calls for no interference according to his submission.
On going through the impugned judgment, more particularly paragraphs 9 to 14, it is clearly emerging out that the accused raised a dispute that the complainant had not served the notice for demanding Rs.64000/-, instead the notice was served for demanding Rs.6,64,826/- for the outstanding amount of business transaction. Consequently therefore, in view of aforesaid factual position, notice cannot be termed to have been given in view of Section 138 of the Negotiable Instruments Act. Consequently therefore, for want of statutory notice, the learned trial court rightly dismissed the complaint which calls for no interference.
In the result, the appeal is hereby dismissed. The impugned judgment and order of acquittal dated 28.02.2006 rendered by the learned Judicial Magistrate, First Class, Veraval in Criminal Case No.582 of 2003 is hereby confirmed.
Record & Proceedings be sent back to the trial Court concerned forthwith.