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TMI Blog2024 (10) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to as "the Trial Court") in Criminal Case No. 295 of 2005 whereby the Trial Court has acquitted the respondent - accused from the charges levelled against him. 2. Brief facts of the present case are that the complainant is residing at Veraval. It is alleged that In the year 2002 as the accused was in need of money, he has borrowed an amount of Rs. 1,00,000/- as loan from the father of the complainant and, therefore, the father of the complainant gave Rs. 1,00,000/- to the accused in the presence of him and thereupon the accused gave cheque bearing No.146766 dated 10.02.2005 for an amount of Rs. 1,00,000/- drawn on Veraval Peoples Co-operative Bank Limited, Veraval Branch in favour of his father. It is alleged that the father of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th an endorsement "account closed", he being the son of the deceased Sureshbhai Nagindas Shah, has issued statutory notice to the accused on the basis of the material available on record. He has submitted that as the accused has given evasive reply to the notice, the complainant had filed criminal case before the Trial Court whereby the Trial Court acquitted the accused and committed an error of facts and law. He has submitted that the cognizance has been taken by the Trial Court when the complaint came to be filed and, therefore, the finding recorded by the Trial Court that after the death of the father, the son has no right to file the complaint is absolutely illegal and not sustainable in the eyes of law. He has submitted that the Trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted any error of law and facts while acquitting the accused for the alleged offence. He has submitted that the complaint itself is not maintainable as the cheque was issued in favour of the deceased Sureshbhai, who died during the process of clearing the cheque even before the receipt of the memo issued by the Bank that "account closed". He has submitted that the concerned payee or holder in due course was already died and as the complainant is not having any legally enforceable debt, the Trial Court after considering the evidence on record has passed the impugned judgment and order of acquittal in favour of the accused. He has referred to the provisions of Section 138(b) of the N. I. Act which reads as under:- "138(b) the payee or the ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer or the payee or endorsee thereof if payable to holder, before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the persons from whom he derived his title." 7.2 Mr.Vyas, learned counsel has, while referring the provision of Section 9 r/w. Section 138(b) of the N. I. Act, submitted that the concerned complainant cannot be said to be holder in due course and, therefore, the Trial Court has rightly considered the legal provision while passing the impugned judgment and order of acquittal. He has submitted that thus there is no any illegality, infirmity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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