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Judgment
Being aggrieved by the Judgment and order dated
07/03/2006 passed by the Judicial Magistrate, First Class (Special
Court) 138 of N. I. Act, Nagpur in S.C.C. No.2796/2005, the appellant -
complainant has preferred this appeal. The learned Judicial Magistrate,
First Class by the impugned Judgment and order acquitted the
respondent No.1 - accused for the offence punishable under Section
138 of the Negotiable Instruments Act. (the appellant hereinafter be
referred as "complainant" and the respondent No.1 hereinafter be
referred as "accused"). The brief facts of the case are as under :-
The appellant - complainant has filed a complaint
under Section 138 of the Negotiable Instruments Act. The appellant has
contended that the respondent No.1 - accused was in need of money
and approached to him in the month of April, 2002 for hand loan of
Rs.85,000/-. The appellant has given hand loan of Rs.85,000/- to him.
It is further contended that the accused assured to repay the amount
within three months. However, failed to repay the amount, as agreed.
The appellant, thereafter, demanded the amount from him. The accused
therefore, issued three cheques to repay the amount. The appellant has
presented the said cheques in the bank. However, all the cheques were
dishonoured with endorsement "insufficient fund". The appellant
thereafter, issued a legal notice to the accused. The accused approached
to him and agreed to give two cheques of Rs.30,000/- each for full and
final settlement of the hand loan.
It is the case of the appellant that thereafter, two
cheques of Rs.30,000/- each dated 31/01/2004 and 28/03/2004 were
issued by the accused in favour of the complainant. The complainant
thereafter, presented the cheques in the bank but the same were
dishonoured for reason "funds insufficient". The complainant has issued
notice to the accused through counsel on 12/04/2004 calling upon him
to make the payment of cheque amount within 15 days from the receipt
of the notice. The accused, however, failed to repay the amount. The
complainant, therefore, constrained to file this complaint.
In response to the summons, the accused appeared in
the proceeding after recording the evidence in the matter and on
hearing both the sides, the learned Magistrate has acquitted the accused
for the offence punishable under Section 138 of the Negotiable
Instruments Act by its Judgment and order dated 07/03/2006.
Feeling aggrieved by the said Judgment and order
dated 07/03/2006 passed by the learned Magistrate, the complainant
has preferred this appeal amongst the grounds mentioned in the Memo
of Appeal.
None present for the appellant - complainant. Shri
G.R.Kothari, the learned counsel holding for Shri V.R. Choudhari, the
learned counsel for the respondent No.1-accused and Mrs. S. V. Kolhe,
the learned Additional Public Prosecutor for the respondent No.2-State.
Shri Kothari, the learned counsel for the accused has
submitted that the complainant has filed a complaint for dishonour of
cheque at Exh.19 dated 28/03/2004. He further submitted that the
notice at Exh.22 was issued by the complainant and reply was given to
the said notice vide Exh.50 by the accused. The complainant, however,
not disclosed the said fact till his cross-examination. He further
submitted that the blank cheque was given by the accused towards the
purchase of the land and agreements are at Exhibits Nos.41 and 42. The
learned Magistrate has considered the case on both the sides and rightly
acquitted from the offence of charge. No interference of this Court is
called for. The appeal, therefore, be dismissed.
Considering the submission of the learned counsel for
the accused, I have gone through the material on record as well as the
impugned order, I do not find any illegality in the Judgment and order
passed by the learned Magistrate for the offence punishable under
Section 138 of the Negotiable Instruments Act.
It is to be noted that as per the case of the complainant
in the month of April, 2002, the accused approached and demanded
hand loan of Rs.85,000/- and therefore, he has paid Rs.85,000/- to him
by three cheques. It is the case of the complainant that all these three
cheques were dishonoured but thereafter, there was settlement between
him and the accused and for full and final settlement, it was agreed that
Rs.60,000/- to be paid by the accused to him and accordingly, the
accused gave two cheques of Rs.30,000/- each in his favour dated
31/01/2004 and 28/03/2004. According to the complainant, the
cheque issued by the accused was dishonoured on 31/03/2004 which
came to his knowledge on 02/04/2004 and therefore, he issued notice
vide Exh.22 which was duly served upon him. In the evidence of the
complainant, it was brought on record that he has received reply of the
accused vide Exh.47 to his notice Ext.22. However, the complainant has
not disclosed the same till his cross-examination. The complainant has
not taken any action for dishonour of earlier three cheques of
Rs.85,000/-. He has also not explained as to why he has given up
amount of Rs.25,000/- payable by the accused as per the earlier three
cheques. The defence of the accused appears to be probable. The
conduct of the complainant creates doubt.
The documentary evidence brought on record in the
cross-examination vide Exh.35 to 52 supports the defence of the
accused. The possibility could not be ruled out that the cheque Exh.19
was given by the accused to the complainant as a security while
entering into the agreement of sale with Rajendraprasad Singh, as per
the Exh.41 and 42. The learned Magistrate has rightly acquitted the
accused. No interference of this Court is called for. The appeal filed by
the complainant is devoid of any merit and liable to be dismissed and
accordingly, dismissed.