PEERANBI Vs. HAJIMALANG

JUDGEMENT

(1.) Heard the learned counsel for the appellant and the learned counsel for the respondent.

(2.) The appellant was the complainant before the Trial Court, who had alleged an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act' for brevity).

(3.) It is the case of the appellant that the appellant and the respondent were good friends. Since the respondent was in need of money, he had raised a hand loan of Rs.2,00,000/- from the appellant, which was lent under two installments dated 25.06.2003 and 26.10.2003. The same was to be repaid on or before 1.10.2004. The same not having been paid on or before that date, a demand was made and therefore, the respondent had executed an agreement, whereby he had furnished his house as security for repayment of the loan amount and had granted permission to the appellant to take action towards recovery of the hand loan, in case the accused failed to repay the sum. Since there was default in repayment and on a demand being made, the respondent is said to have issued a cheque bearing No.956504 for a sum of Rs.2,00,000/- drawn on Syndicate Bank, Bijapur. When the same was presented for payment on 8.12.2004, it was returned with an endorsement that the drawer's signature differed from his specimen filed with the Bank and further, that there was insufficient funds in the account of the respondent. It is in that background that a notice of dishonour was issued to the respondent, calling upon him to pay the amount within 30 days. As there was failure to comply with the demand, the complaint was lodged. Cognizance of the offence was taken and after recording the sworn statement of the complainant, summons was issued to the respondent. The respondent appeared through counsel and contested the matter. The complainant having tendered evidence by way of an affidavit and having marked documents at Exhibits P1 to P6 and having recorded the statement of the respondent, the respondent having tendered evidence and also having examined another witness in his favour, had got marked Exhibit D1. The court below, after having heard both sides, framed the following points for consideration: