UDAI SHANKER MISHRA Vs. OM PRAKASH SHUKLA

JUDGEMENT

(1.) This criminal appeal filed under Section 378(4) Cr.P.C. is directed against the judgment and order dated 22.9.2009 passed by Chief Judicial Magistrate, Sultanpur acquitting accused Om Prakash Shukla of the charges framed under Section 138 N.I.Act ('Act' in short).

(2.) I have heard Sri S.K.Mehrotra, learned counsel for appellant and Sri Jyotindra Misra, Senior Counsel for respondent-accused and gone through the record.

(3.) Prosecution case apparent from complaint and statements under Section 200/202 Cr.P.C. in brief is that Udai Shanker Misra appellant filed a complaint before Chief Judicial Magistrate, Sultanpur under Section 138 of the N.I.Act alleging that Om Prakash Shukla was granted license for running diesel-petrol outlet from Bharat Petroleum. Since he was short of the fund, sought financial help from complainant as his father Sri Shyam Narain Misra had recently retired from UCO Bank as Assistant Manager under voluntary retirement scheme. He had received Rs. 20,00000/- on retirement. Sri Shukla persuaded complainant's father who agreed and extended financial help to the tune of Rs. 16,00000/-, he executed a written-note on 19.10.2001 on a stamp paper of Rs. 100/- expressing commencement of partnership business with the complainant. Partnership deed was also executed on 10.2.2003 duly verified by Sudhakar Misra, Notary, along with two witnesses, namely, Ashok Kumar and Prem Lal Srivastava, Advocate. It was agreed that Om Prakash Shukla would be partner of 51% and Udai Shanker Misra of 49%. Since for sometime nothing was paid despite repeated protests, accounts were finally settled on 30th March, 2005 and accused gave banker's cheque of Rs. 3,95,575/- towards complainant's share in the profits and unilaterally dissolved the partnership. He also executed another cheque for Rs. 16,00000/- which was principal amount advanced by complainant's father. These cheques were presented by complainant before State Bank, Kurebhar on 26.4.2005. First cheque was dishonoured on account of insufficiency of funds, while another cheque for Rs. 3,95,572/- was returned unpaid under the instructions of 'stop payments'. Thereafter complainant gave a written notice on 10.5.2005 as required under Section 138 of N.I.Act. Despite notice, an evasive reply was sent by respondent stating that both the cheques were not issued by him. Non-payment of cheque led to cause of action, hence complaint.