- (1.) Heard learned Counsel for both sides. This appeal is directed against the judgment of acquittal passed on 10.6.2008 by Sri Debasis Mahapatra, learned Judicial Magistrate, 1st class, Dhanbad in complaint case No. 1529 of 2005 corresponding to T.R. No. 1003 of 2008, whereby, in a proceeding under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act), the Court below has acquitted the respondent No. 2 on the ground that the appellant complainant had failed to prove that the demand notice required under the proviso to Section 138 of the N.I. Act was, in fact, sent to the accused. The case of the complainant, shorn of unnecessary details, is that the respondent No. 2 (accused) had requested for a friendly loan of Rs. 80,000/- from the appellant-complainant which was promised to be paid within four months, pursuant whereto the money was advanced by the complainant to the accused. Ultimately, the accused issued an A/C payee cheque bearing No. 970132 dated 28.7.2005 for a sum of Rs. 80,000/-, drawn on Punjab National Bank, Jharia in favour of the complainant. The cheque in question was presented by the complainant in Bank of India on 28.7.2005 itself and the same was returned with the remarks "Exceeds arrangement" and thereby, the said cheque was dishonoured. When the complainant informed the accused, the accused requested the complainant to re-deposit the cheque and, accordingly, the cheque was again deposited in the Bank on 19.8.2005, but this time also, the cheque in question was dishonoured on the same ground and information was given to the complainant on 22.8.2005. Upon coming to know about the dishonour of the cheque, the complainant got a legal notice issued on 5.9.2005 through his lawyer and as even after the notice, the accused respondent No. 2 failed to pay the cheque within the period of 15 days. The complaint was filed on 30.9.2005.
(2.) Evidences were adduced by both the sides before the Court below in their favour and on appraisal of the evidence, brought on record, the Court below vide judgment dated 10.6.2008 acquitted the accused of the charge, mainly on the ground that the complainant had failed to prove that the demand notice was in fact sent to the accused.
(3.) Learned Counsel for the appellant-complainant has submitted that the impugned judgment passed by the Court below is absolutely illegal, inasmuch as there is a presumption against the drawer of the cheque, once the issuance of the cheque is proved in the Court. Learned Counsel for the appellant-complainant has further submitted that the complainant has proved the complaint petition, the cheque and the demand notice in the Court below and as such, it could not be said that no demand notice was issued to the complainant.;