MOHD. SIRAJUDDIN Vs. MD. KALEEMUDDIN

JUDGEMENT

(1.) COMPLAINANT is in appeal in these cases aggrieved by the order of acquittal passed by the III Addl. Sessions Judge, Gulbarga on 1.9.2007 for the offence punishable under S. 138 of the Negotiable Instruments Act. It is alleged in connection with the celebration of marriage of the daughter of accused Rs. 3,75,000/ - was borrowed by the accused at different intervals who in turn, had issued four cheques i.e., three cheques of Rs. 1 lakh each and another for Rs. 75,000/ -. However, according to the accused, Rs. 75,000/ - was advanced by him to the complainant in turn he did not return the amount as such, his daughter's marriage broke up. Also the complainant forcibly got obtained four cheques signed and foisted a false case against him and, there is no service of notice. As such, rightly the lower appellate court acquitted the accused as against the order of the JMFC, Gulbarga convicting him and ordering to pay compensation.

(2.) HEARD the counsel representing the parties.

(3.) AS per S. 138 and 139 of the Negotiable Instruments Act, once the cheque is signed and issued presumption will be that the cheque was issued towards a legally enforceable debt. S. 118, 119 and 139 of the Negotiable Instruments Act do provide for such a presumption. In the present case there appears to be some semblance of transaction between the complainant and the accused. Whether the accused would have advanced Rs. 75,000/ - to the complainant which he says was not returned or in a dispute between the complainant and the accused, complainant would have obtained the cheques and got it signed forcibly are all questions to be thrashed out before the trial court. Even the civil case filed by the accused against the complainant came to be dismissed. Further, so far as service of summons is concerned, the presumption drawn by the court below is, complainant deliberately avoided service of notice to the accused without mentioning the full address of the accused and the reasoning is, accused himself has furnished the address and summons issued by the court has reached the accused.