- (1.)BY Court Heard the parties finally.
(2.)THIS acquittal appeal arises out of the judgment dated 5.7.2010 passed by the Chief Judicial Magistrate, Lohardaga in Complain Case No. 114 of 2006 acquitting the respondent no. 2 - Faruque Khan under Section 138 of the Negotiable Instrument Act (hereinafter referred to as 'N. I. Act').
Mr. A. K. Kashyap, learned senior counsel appearing for the appellant/ complainant assailing the impugned judgment submitted as follows. The trial court wrongly held that there was much delay after service of legal notice to the ac cused and there was violation of Section 138 of the N.

I. Act. According to the complainant the parties were friends and the accused used to take financial help from the complainant. On 4.4.2006, the accused was in urgent need of money. He approached the complainant and requested to manage Rs. 2,63,000/- and assured to return it within four months. He gave a cheque for the said amount and requested to present it in August 2006. On this, the complainant managed and gave the said amount to the accused. Such transaction was effected on the same day i.e. 4.4.2006. The complainant produced the cheque for encashment on 2.8.2006, but it was returned on the same day with memo showing insufficient fund. The complainant sent a legal notice on 14.8.2006 for making payment in 15 days. It will appear from Exhibit 4 - the postal acknowledgment, that such notice was received by the accused on 22.08.2006. As per Section 138 (c) read with Section 142 of the N. I. Act, the complaint could be filed within one month of the date on which the cause of action arose under Clause (c) of the proviso to Section 138. From the date of receipt of notice, the accused was required to make payment within 15 days as per the notice i.e. by 6th of the September 2006. Admittedly, neither payment was made nor any reply to the said notice was sent to the complainant. The complaint was filed on 10.10.2006. It will be presumed that the delay of 4-5 days, if any, was condoned while taking cognizance which power was vested with the Magistrate under Section 142 of the N. I. Act. Moreover, the order taking cognizance was never challenged by the accused. He also submitted that the complainant was not required to establish how and where the payment of the amount was made to the accused as observed by the learned trial court. Learned trial court took into account irrelevant consideration when it observed that the complainant could not have possessed such a Hugh amount. He further submitted that it is also wrongly held that the complainant has not established that the said amount related to any debt or any liability. He relied on Section 118 (a) and 139 of the N. I. Act, and the judgement reported in (2010) 11 SCC 441 Rangappa Vs. Sri Mohan.

(3.)ON the other hand, Mr. Sanjay Prasad, learned counsel appearing for the respondent no. 2 relying on the judgment reported in (2003) 1 SCC 1 C. Antony Vs. K. G. Raghavan Nair , submitted that the findings of acquittal in this case may not be interfered. Supporting the impugned judgment he further submitted that the amount was filled in other hand writing in the cheque. He also submitted that a complaint case being Case No. 33 of 2008 was filed by the complainant (Exhibit 6) as the accused misused one of the 12 cheques given to him for handing them over to the financier, and therefore, non-reply to the notice was inconsequential.