V S YADAV Vs. REENA

JUDGEMENT

(1.) This appeal has been preferred against the judgment of acquittal passed by learned Metropolitan Magistrate (MM) acquitting the respondent/ accused of the offence under Section 138 of Negotiable Instrument Act ('N.I. Act' for short) on the ground that the complainant had failed to prove that the cheques were issued by the respondent against a liability i.e. refund of loan.

(2.) The brief facts relevant for the purpose of deciding this appeal are that three cheques dated 27th September, 2006, 4th October, 2006, and 6th October, 2006 for amounts of Rs. 1,25,000/-, Rs. 50,000/- and Rs. 50,000/- respectively, issued by the respondent got dishonoured and the appellant filed a complaint under Section 138 of N.I. Act against the respondent after service of a Notice of Demand as the respondent failed to pay the amount despite notice of demand. Notice under Section 251 Cr. P.C. was served upon the respondent, the respondent took no specific defence and only pleaded not guilty. The appellant by way of an affidavit led his own evidence testifying that cheques were issued to him after he had advanced loan of Rs. 2.25 lakh to the respondent. The dishonour memo of the cheques was proved by the bank official. No defence evidence was produced by the accused.

(3.) The appellant had taken a stand that no reply to the notice of legal demand was sent by the respondent, instead, envelopes with blank sheets in it were sent by the respondent. In her examination under Section 281 Cr. P.C. she did not deny issuance of cheques, but, took a defence that cheque were issued as security for seeking loan but no loan was advanced and the cheques were therefore without consideration. The learned MM observed that conviction under Section 138 of N.I. Act cannot be made acting on evidence of complainant and considering the presumption under Section 139 of N.I. Act. The complainant has to prove beyond reasonable doubt the debt or liability of the accused. Learned MM observed that complainant had not specified the date of giving loan and a reasonable man would remember the date of giving substantial sum of money as loan to other and this blissful forgetness of the date by the complainant raised doubt about the liability of the accused, more so, in view of the stand taken by the accused that the cheques were issued as security and the same were never returned.