ARUN CHARNTHIMATH Vs. SURESH JAIN

JUDGEMENT

(1.) HEARD the learned counsel for the appellant.

(2.) THE appellant was the complainant before the Trial Court alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act', for brevity). It is stated that the appellant was an Advocate by profession and the Dominion Clubs and Resorts, according to the complainant was believed to be a Company of which accused No. 2 was the Managing Director and accused Nos. 3 to 6 were the Directors and it was his further case that the said accused had embarked, on a project of establishing an exclusive ladies health and ayurvedic spa and therefore, was looking out for investors and since the present appellant was an acquaintance of the said Directors, they had persuaded him to lend a sum of Rs.5,00,000/ - on the promise of huge returns on the investment and that they would be able to discharge the loan within a span of six months. It is the case of the appellant that he had infact lent a sum of Rs.5,00,000/ - believing that the accused would provide huge returns on the money. However, since there was no sign of repayment even after 18 months, the complainant was constrained to demand repayment. Thereafter, he was re -assured that the accused were negotiating the sale of the land and property and that his amount would be returned immediately on such transaction being completed. Since even that did not materialize, it transpires that accused No. 6 who was the new Chairman of the Company, took the initiative of settling the dispute and issued a Cheque for a sum of Rs.5,00,000/ - dated 4.6.2004 in favour of the appellant. The Cheque was issued on behalf of Dominion Clubs and Resorts represented by its Director accused No. 6. The same, when presented for encashment, was returned with the Banker's endorsement that no such account existed with the Bank. The appellant thereafter had issued a notice demanding payment and when the payment was not forthcoming, had filed a complaint against Dominion Clubs and Resorts as accused No. 1 and the Managing Director and other Directors, as accused Nos. 2 to 6. The Magistrate having taken cognizance, had issued summons to the accused and the accused had entered appearance and pleaded, not guilty. Thereafter, the appellant had tendered evidence as PW -1 and had produced Ex. P1 to Ex. P30. After recording the statement of the accused, accused No. 2 had examined himself as PW -2 and got marked Ex. D1 to Ex. D3 and after hearing both the sides, the Court of Magistrate had framed the following points for consideration:

(3.) THOUGH the judgment as against accused Nos. 5 and 6 has attained finality, having regard to the findings of the Appellate Court where the Court has given findings which are in the nature of vitiating the entire complaint, the appellant, as a matter of prudence, has sought to prefer this appeal.