- (1.) HEARD learned counsels for both the sides.
(2.) THIS appeal is directed against the Judgment of acquittal passed by Shri S.K. Dubey, Judicial Magistrate, Jamshedpur, on 13.02.2006, in a Complaint case, being C/1 case No.166 of 2001, T.R. No.514 of 2006, whereby, in the complaint case filed by the appellant complainant for the offence under Section 138 of the Negotiable Instrument Act. (hereinafter referred to as 'the N.I. Act'), the Court below upon adjudication has acquitted the respondent accused, finding him not guilty for the offence charged. The case of the appellant complainant, as made out in the complaint petition filed by the complainant M/s Goyal Enterprises, is that the complainant is engaged in business of steel materials and it supplied the steel materials on credit to M/s Everest Electrical & Engineering Co. Pvt. Ltd. and pursuant thereto, the accused Ishta Narayan Mishra who happened to be the Managing Director of the said company issued two account payee cheques, bearing cheques Nos.0956557 and 0956558 for Rs.82,155/- and Rs.1,31,078/- respectively. The amount, in total, comes to Rs.2,13,233/-. Both the cheques were issued on 15.9.2000 and were drawn upon the State Bank of India, S.S.I. Adityapur Branch, Jamshedpur. The said cheques were deposited in the Bank on 10.1.2001, but the same were dishonoured and returned back with the Bank Return Memo, giving reason for dishonour of cheques as "Exceeds Arrangements". Subsequent thereto on 16.1.2011, the complainant served the legal notice for demand upon the accused, but as the amount was not paid to the complainant, the complaint was filed under Section 138 of the N.I. Act. In course of trial in the Court below, the complainant has examined two witnesses, who were CW-1 Hardeep Singh, who was authorized by the said M/s Goyal Enterprises to file the case against the accused and CW-2 Somnath Ghosh, who was a Bank official.
(3.) CW - 1 Hardeep Singh has deposed about issuance of cheques by the respondent accused and depositing the same in the Bank. The cheques were proved in the Court as Exhibits 1 and 1/2. Though he has stated that the cheques were returned with the Bank Return Memo, but the same were not marked as exhibits. He has also stated about the legal notice, which was sent to the respondent accused and the same was proved as Exhibit 2. The acknowledgments of the legal notice were marked as Exhibits 3/1 and 3/2. In his cross examination on behalf of the defence regarding the legal notice, he has admitted that the signature on the acknowledgment is not of the accused. In his cross examination about the cheques, he has denied the suggestion that there were any interpolation in the dates on the cheques. At this stage, it may be stated that from bare perusal of the cheques which have been proved as Exhibits 1/1 and 1/2, it is apparent that there are overwritings on the dates of both the cheques and it clearly appears that the date '15.4.2000' has been made '15.9.2000' by overwriting the figure Rs.4' to read as Rs.9' in both the cheques. There is no signature or endorsement of the drawer of the cheques on the overwriting on either of these cheques.;