- (1.) This is the complainant's appeal on special leave granted by this Court under the provisions of Section 378(4) of the Code of Criminal Procedure directed against the judgment of acquittal passed by the Court below in C/l Case No. 705/98 (T.R.751/A/03).
(2.) The case of the complainant appellant was that it is partnership firm dealing in business of sale of building materials, namely cement, iron rods etc. having its place of business at Cinema Road, Parsudih, Jamshedpur and the accused is a supplier, of such building materials. According to the complainant the respondent, opposite party No. 2 used to purchase the building materials regularly from the complainant. The price, on purchases, were sometime paid in cash and sometime purchases used to be on credit. In course of time sum of Rs.2,36,522.68 had become due against the accused respondent No. 2 towards prices of the building materials supplied on credit by the appellant. The said outstanding dues was duly acknowledged by the accused, respondent No. 2. The appellant demanded the said dues from the respondent No. 2 and in response thereof an account payee chequefor the said amount bearing No. 049642 dated 9-9-1998 drawn on Central Bank,Sakchi Branch, Jamshedpur was issued for discharge of the said liability fully and finally. The appellant on receiving the cheque presented the same to its banker, Canara Bank, Khasmahal Branch, Jamshedpur to collect the amount but after sometime the said cheque was returned unpaid with a memo dated 10-9-1998 of the drawee Bank stating reason as 'Insufficient Fund' in the account (Ext. 6). The appellant thereafter sent registered notice dated 17-9-1998 as required under proviso (b) of Section 138 of the Negotiable Instruments Act to the respondent No. 2 through its lawyer demanding payment of the said amount (Ext. 8). The said notice was duly received by the accused but instead of making payment of the amount of cheque, the accused respondent No. 2 sent an evasive reply dated 7-10-1998 through his lawyer. Hence, a criminal complaint under Section 138 of the Negotiable Instruments Act was filed in the Court of the Chief Judicial Magistrate, Jamshedpur being C-1 Case No. 705 of 1998, in which ultimately the impugned order of acquittal was passed by the said Judicial Magistrate.
(3.) In the Court below, the complainant adduced documentary and oral evidences to establish his case. He produced several documents which have been marked as Exhibits including money receipt of final payment (Ext. 3), cheque return memo (Ext. 6), carbon copy of notice dated 17-9-1998 (Ext.8), Registration slip (Ext. 9), number of challans (Ext. 10 to 10/40). The complainant also examined altogether six witnesses P.W. 1 Prabhakar Jhain paragraphs 1, 2, 3, 4, 5, 6 and 7, P.W. 2 Murlidhar Prasad Vernwal in paras 1, 2, 3, P.W.S-Nawal Kishore Gupta, Bank Manager, Central Bank of India, Sakchi Branch in paras 2, 3, P.W. 4-Madhu Sudan Jairam Logbate Manager, Canara Bank, Khas Mahal Branch in paras 2, 3, 4 in the respective statements have fully supported the case of the complainant. P.W.6 Din Dayal Prasad, partner of the complainant M/s. Bharat Sales Corporation fully proved his complaint. However, the Court below by the impugned order acquitted the accused respondent No. 2 mentioning therein that there is absence of substantial evidence for proving the guilt of the accused.;