RAM Vs. SMT. SULOCHANA

JUDGEMENT

(1.) THIS appeal is filed challenging the judgment dated 4.9.2007, passed by the 4th Addl. Civil Judge (Jr. Dn.) and JMFC, Hubli, in C. C. No. 342/2001, acquitting the respondent of the offence punishable under Section 138 of the Negotiable Instruments Act. For the purpose of convenience the parties are referred according to their ranking before the trial Court.

(2.) THE complainant filed a complaint under Section 200 of Cr.P.C. against the accused on 6.1.2001 alleging that the accused had taken a hand loan of Rs. 3 lakhs from the complainant for the discharge of the loan standing in the name of her husband and also for the purchase of the property. About one year prior to the date of cheque, as a security for the repayment of the said loan, the accused issued a post dated cheque bearing No. 16685, dated 15.10.2000, for a sum of Rs. 3 lakhs, drawn on the Maratha Co -operative Bank Ltd., Hubli, and also executed an On Demand Promissory Note for Rs. 3 lakhs. It is the case of the complainant that despite repeated requests the accused did not pay the cheque amount. Hence the complainant presented the cheque for encashment through Vijaya Bank, Keshwapur Branch, Hubli, on 9.11.2000. The said cheque when presented was dishonoured with the endorsement 'funds insufficient'. When the said fact was intimated to the accused, the accused requested the complainant to present the cheque again and ensure the encashment of the said cheque. The complainant again presented the said cheque on 27.11.2000, but again the endorsement came as 'funds insufficient'. Thereafter the complainant issued a legal notice on 4.12.2000 to the accused calling upon him to pay the cheque amount within 15 days of receipt of the said notice. The accused refused to receive the said notice, as per the postal endorsement. Thereafter the complainant filed the complaint before the Court on 6.1.2001.

(3.) THE learned Magistrate after hearing the complainant and the accused, by his judgment impugned in this appeal held that the complainant has not proved the case against the accused, since the cheque was not issued for the legally enforceable liability, but as a security and hence no case is made out for an offence punishable under Section 138 of the Negotiable Instruments Act. Being aggrieved by the order of acquittal passed by the learned Magistrate, the complainant has filed this appeal.