( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 267 OF 1999 Pandurang s/o. Yadneshwar Dixit .. Appellant Age/ 52 years, Occ. Agriculture & Service, R/o. Adarsh Colony, Ambejogai, Dist. Beed. Versus 1. Raosaheb s/o. Laxman Ghadage .. Respondents Age. Major, Occ. Business, Proprietor of New Suresh Trading Company, Mondha Road, Ambejogai, Dist. Beed. 2. The State of Maharashtra Shri S.P. Katneshwarkar, Advocate for the appellant. Shri Sachin Deshmukh, Advocate for respondent No.1. Shri B.V. Wagh, A.P.P. for respondent No.2/State. CORAM : P.R. BORKAR,J. DATED : 21.11.2009 ORAL JUDGMENT :- 1. This is an appeal preferred by the original complainant being aggrieved by order of acquittal passed by the learned Judicial Magistrate, First Class, Ambejogai, in S.C.C. No. 196 of 1996, decided on 24.03.1998, whereby respondent No.1, came to be acquitted of offence punishable under Section 138 of the Negotiable Instruments Act (for short “N.I. Act”). ( 2 ) 2. Present appellant / complainant filed private complaint in the Court of Judicial Magistrate, First Class, Ambejogai, alleging that the appellant is an agriculturist having landed property at Ambejogai and he intended to purchase Drip Irrigation System from the respondent No.1. Accordingly, he paid amount of Rs. 12,000/- to respondent No. 1 towards purchase of Drip Irrigation System. Respondent No. 1/accused provided material worth Rs.7000/- and agreed to supply remaining subsequently, but he could not do so and therefore towards remaining amount of Rs. 5000/-, respondent No.1 issued a cheque dated 15.12.1996, drawn on State Bank of India. Cheque came to be dishonoured and therefore notice was issued by the appellant. Inspite of the notice, amount was not paid. Therefore, complaint was lodged for commission of offence punishable under Section 138 of the N.I. Act. 3. In support of this case the complainant examined three witnesses including himself. Other two witnesses are necessarily bank employees, who proved dishonour of the cheque on the ground of insufficiency of funds. The Trial Court dismissed the complaint and acquitted the accused ( 3 ) mainly on the ground that it was not duly proved that the complainant had transaction with the accused/respondent No.1 and towards legal dues the cheque was issued. The learned Magistrate discussed the reasons in para 8 onwards of his judgment. 4. Heard Adv. Shri S.P. Katneshwarkar for the appellant, Adv. Shri Sachin Deshmukh for respondent No.1 and A.P.P. Shri B.V. Wagh for respondent No.2/State. 5. It is admitted in the cross-examination in para 8 by the appellant that he had transaction with Suresh Trading Company. His wife had also transaction with said firm. He further stated that he had taken initiative and made both the transactions with Suresh Trading Company. It is argued that though the transaction was with Suresh Trading Company, the notice was issued to New Suresh Trading Company. It is case of the complainant himself that Suresh Trading Company and New Suresh Trading Company are the companies belonging to three brothers. The complainant stated in his cross- examination that he was not knowing exactly who was proprietor of Suresh Trading Company. So, if we are to ( 4 ) accept these circumstances, the inference is that the notice before lodging complaint was not given to the company with which the complainant had transaction. 6. Secondly, the complainant specifically stated that he had entered into two transactions. One on his own behalf and other on behalf of his wife. Both transactions were with Suresh Trading Company. Now, it is admitted position that wife of present appellant Mrs. Asha Pandurang Dixit has filed Regular Civil Suit No. 155 of 1997 against Suresh Ghadge, brother of the appellant for recovery of amount in respect of dues. If we are to believe word of the complainant that he had entered into that transaction on behalf of his wife, and when the transactions involved in this case and in the suit were with same company, it is not explained why suit is filed against brother of respondent No.1, while respondent No.1 is prosecuted. 7. The complainant/appellant further admitted in his cross-examination that his transaction was with Suresh Trading Company and not with New Suresh Trading Company. He denied that the accused was proprietor of New Suresh Trading ( 5 ) Company. He also denied that accused was not concerned with Suresh Trading Company. The complainant, however, has given notice to New Suresh Trading Company. 8. It is further admitted in cross-examination by the complainant that he has not mentioned in his complaint that he had given amount of Rs. 12,000/- to the accused by cheque, then he stated that he did not remember in whose name the cheque was issued, but then he changed and stated that he had issued cheque in the name of brother of the accused. So, that further fortifies case that if the complainant had any transaction, it was with the brother of the accused and not with the accused. 9. Viewed from this angle, it cannot be said that the judgment passed by the Trial Court is in any way wrong or improper. In the result, the appeal is dismissed. Parties to bear their own costs. [P.R. BORKAR,J.] snk/2009/NOV09/crap267.99