R.N. Laddha JUDGMENT
R.N. Laddha, J.
1. I have heard Mr. Ketan Dabake, the learned Counsel for the appellant; Ms Aishwarya Sharma, the learned Counsel appearing on behalf of respondent No. 1; and Mr. RM Pethe, learned Additional Public Prosecutor for respondent/State.
2. The legality, propriety and correctness of the Judgment and Order dated 03.08.2006, passed by the learned Metropolitan Magistrate, 50th Court, Vikhroli, Mumbai, in C.C. No. 1489/SS/2005 whereby the respondent No. 1/accused came to be acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1981 (for short 'the NI Act'), is assailed in this Appeal.
3. The appellant (original complainant) has stated that it is a Public Limited Company that is engaged in the business of finance, and during the course of its regular business, it granted a loan of Rs. 30,000/- to the respondent No. 1 (original Accused). In furtherance of the same, it stated that the accused executed a pro-note and a receipt towards having received the money.
4. For the payment of the loan amount, respondent No. 1 issued a cheque bearing No. 666148 dated 02.09.1998 for Rs. 30,000/- drawn on Abhyudaya Co-op. Bank Ltd., Mumbra Branch, in favour of the complainant. On presentation of the cheque, it was returned unpaid for the reason "not arranged for". The complainant issued a statutory notice, which the accused received. However, the respondent No. 1/accused did not pay the cheque amount.
5. On 13.10.1998, the complainant/appellant filed a criminal complaint against the accused/first respondent for the offence punishable under Section 138 of the NI Act. The learned Magistrate took cognizance of the offence and summoned the accused. On the appearance of the accused, the particulars of the offence were read over and explained to her. The plea of the accused was recorded, and the accused abjured the guilt and claimed for trial.
6. During the course of the trial, the learned Magistrate recorded the evidence of Ms Madhavi M. Pitre, an administrative officer working at Niketan Finance (the appellant company), who deposed that the accused had obtained a loan of Rs. 30,000/- along with her husband, Yunus Abdul Rehman Mamtuley, on 23.07.1996. Subsequently, in order to discharge their legal liability and debts in favour of the appellant company, a cheque bearing No. 666148 dated 02.09.1998 was issued, which was subsequently returned for the reason "Not arranged for". A number of documents were also tendered on behalf of the complainant. The statement of the accused under Section 313 of the Cr.P.C. came to be recorded, wherein she denied the charge. The accused, in her defence, examined herself (DW1) and stated that she had not taken any loan from the appellant company and never executed any loan agreement or receipt. She claimed that she did not sign any document or execute any pro-note and that the appellant company had fabricated various letters, receipts and reminders in order to file a false case against her. She stated that the cheque was issued by her for security purposes against giving a loan of Rs. 1,00,000/- and denied her liability to pay any amount under the cheque.
7. By an impugned judgment dated 3.8.2006, the learned trial Court acquitted the first respondent of the offence punishable u/s 138 of the NI Act on the ground that there are certain infirmities in the complainant's case which cannot warrant the conviction of the first respondent. Being aggrieved and dissatisfied by the impugned judgment and order, the appellant has preferred this appeal.
8. Mr. Ketan Dabake, the learned Counsel for the appellant, subm........