Appellant – original complainant has preferred this appeal under section 378 of the Code of Criminal Procedure, 1973 (for short “the Code”) and challenged the judgment and order of acquittal passed by the learned 2nd Additional Senior Civil Judge and JMFC, Gandhinagar on 25.3.2011 acquitting the respondent accused for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”). 2. According to the complainant, the accused was his friend and on account of marriage, he was in need of finance, therefore, he made a request to advance Rs.2,50,000/- and assured that he would return the amount within one year. Therefore, he advanced Rs.2,50,000/- to the accused, who gave cheque dated 9.9.95 for Rs.50,000/- drawn on Shri Vitthal Cooperative Bank Limited, Dehgam, but the said cheque returned unpaid on account insufficient funds. Therefore, notice was served to the accused demanding amount of unpaid cheque, but the accused did not pay the unpaid cheque amount. Therefore, the complaint under section 138 of the Act was filed in the Court of learned JMFC at Gandhinagar and it was registered as Criminal Case No.5361 of 1995. The trial Court issued summons. Pursuant to the summons, the accused appeared and denied having committed the offence. Therefore, the prosecution adduced evidence. At the end of recording of evidence, further statement of the accused was recorded under section 313 of the Code. After hearing the learned advocates for the parties, the trial Court by impugned judgment acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
3. I have heard learned Senior Counsel Mr. Desai with learned advocate Mr. Mrugen Purohit for the appellant. The respondent is served, but none has appeared. I have also heard learned APP Miss Shah.
4. It appears from the impugned judgment that acquittal was recorded on the ground that notice as required under law was not served to the accused and the cheque was not drawn by the accused on an account maintained by him with a bank for payment of the amount out of that account.
5. In order to prove the prosecution case, the complainant examined himself at Exh-17 and also examined bank officer of Shri Vitthal Cooperative Bank Limited PW 3 Chhanabhai Kalidas at Exh-33. The prosecution also produced cheque given by the accused at Exh-18, memo of Shri Vitthal Cooperative Bank Limited at Exh-19, memo of Bank of Baroda at Exh-20, copy of the notice given to the accused at Exh-21 and acknowledgment due at Exh-22 and 23.
6. It appears from the bank memo Exh-19 that cheque was returned unpaid on account of insufficient funds. The complainant served a notice dated 6.11.1995 Exh-21 to the accused. It appears from the notice Exh-21 and the acknowledgment due Exh-22 and 23 that the notice was sent at two addresses of the accused. However, it appears from the acknowledgment due Exh-22 and 23 that it was not received by the accused. Under section 138(b), when cheque is returned unpaid on account of insufficient funds or if it exceeds the amount arranged to be paid from that account, the payee or holder in due course of the cheque, as the case may be, is required to give a notice in writing to the drawer of cheque informing him that the cheque has returned unpaid. In the present case, the complainant issued a notice Exh-21, but the acknowledgment due Exh-22 and 23 do not indicate that the accused received the notice. Therefore, the complainant has not complied with the requirements of section 138(b) of the Act and hence, the trial Court was justified in recording that the notice was not served to the accused.
7. It also appears from the observations made in the judgment that the accused did not give the cheque on the account maintained by him. The bank witness PW 3 Chhanabhai Exh-33 in his deposition deposed that Kamlaben Khumansing Rathod made an application Exh-34 to open an account in the bank and she was the account holder of Account No.8017 and when the cheque in question came for clearing in his bank, balance in the Account No.8017 was Rs.252.55ps and therefore, cheque was returned. In the cross examination, the witness admitted that Account No.8017 does not stand in the name of the accused. In view of this evidence, it is clear that the accused did not give cheque in question to the complainant drawn on the account maintained by him with Shri Vitthal Cooperative Bank Limited. Therefore, when the cheque was not drawn by the accused on the account not maintained by him with a banker, even if such cheque returned unpaid on account of insufficient funds, it cannot be said that the accused committed the offence under section 138 of the Act. Therefore, the trial Court was justified in acquitting the accused.
8. Learned Senior Counsel Mr. Desai failed to point out any infirmity in the impugned judgment.
9. In the result, the appeal fails and stands dismissed.
shekhar* (BANKIM N.MEHTA, J.)