Mir Dara Sheko, J. - (1.) The instant criminal appeal has been directed by the appellant/complainant, who will be called on hereinafter as the appellant, against the judgment of acquittal dated 29.03.2016 delivered by learned Judicial Magistrate First Class 2nd Court, Port Blair in C.R. case No 106 of 2015 under section 255 (1) of the Code of Criminal Procedure holding the respondent/accused, who will be referred to hereafter as the respondent, is not guilty for the offence under section 138 of the Negotiable Instrument Act 1881.
(2.) Learned Counsel for the Appellant, Ms A.S.Zinu criticized the judgement of acquittal and submitted to turn the fate of the case into the judgement of conviction for reasons as mentioned below:- (i) Criticizing the judgment, she submitted that holding defect in service of notice before filing of the complaint case, in the manner it was held by the learned Magistrate, was misconception of fact and law and, therefore, the same is liable to be set aside. (ii) Learned Magistrate failed to appreciate the bond of undertaking before taking the loan amount from the appellant and taking return of one of four cheques after satisfying amount of the said cheque. (iii) Since save and except on the notice point learned Trial Court did not find any flaw in the merit of the complaint case and since the notice upon the respondent either ought to have been held as valid service, or at least deemed service, which was proved by evidence of PW-1 corroborated by PW-2, nonacceptance of valid service of notice was absolutely illegal and perverse causing miscarriage of justice, which cannot stand on the way of ending the case except conviction.
(3.) Though there was appearance for the state, but as the appeal is between intra parties did not offer any argument.;