JAIPRAKASH SINGH Vs. RASHMI AGGRAWAL

JUDGEMENT

(1.) THIS criminal revision petition has been preferred by the petitioner/accused to challenge the order dated 23.10. 2010 passed by the learned Additional Sessions Judge-I (Outer) Rohini Courts, Delhi whereby the learned Appellate Court allowed the appeal filed by the respondent/complainant.

(2.) BRIEF facts relevant for deciding the present revision petition are that the complainant, Mr. Dinesh Aggarwal was engaged in the business of stainless steel and gift items under the name and style of M/s Family Gift Emporium and advanced a loan of Rs. 1,25,000/- in March 2002 to the petitioner/accused. Towards the discharge of the said loan liability, the petitioner/accused issued two post-dated cheques bearing nos. 849381 dated 15.05.2003 amounting to Rs. 70000/- and 414683 dated 22.06.2003 amounting to Rs. 75000/- both drawn on Bank of Baroda, New Delhi- 110085. The said cheque amounts included Rs. 20,000/- as interest on the loan amount. It has been the case of the complainant that when the said cheques were presented for encashment, the same were returned back unpaid/dishonoured on the ground of "account closed" and thereafter in pursuance of the same, a legal demand notice dated 02.07.2003 was issued to the petitioner/accused but despite the service of the notice, the petitioner/accused failed to clear the said liability and this led the complainant/respondent to file a complaint u/s 138 of Negotiable Instruments Act, 1881 against the present petitioner/accused. The petitioner/accused after summoning was put to trial. Notice under section 251 Cr.P.C was given to the petitioner/accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 vide order dated 8.7.2004 to which the petitioner/accused pleaded not guilty and claimed trial. The Trial Court vide judgment dated 9.3.2010 dismissed the complaint primarily on the ground that there was material alteration in the cheques in question and that the cheques were not issued in discharge of legally enforceable liability. The original complainant Mr.Dinesh Aggarwal expired during the trial and vide order dated 16.11.2009, the appellant was substituted as the complainant. Aggrieved by the order dated 9.03.2010 the appellant had preferred an appeal inter-alia on the grounds that the impugned judgment was bad in law, the testimony of original complainant and statement of J.N Singh were misconstrued by the learned trial court; there was no material alteration in the cheques in question etc. The said order passed by the learned trial court was set aside by the Learned Additional Sessions Judge vide order dated 23.10.2010and the Learned Additional Sessions Judge convicted the petitioner/accused u/s 138 of the Negotiable Instruments Act, 1881 and the petitioner/accused was sentenced to rigorous imprisonment for nine months with a fine of Rs. 2,00,000/- and in default of fine SI forthree monthsvide order dated 29.10.2010.

(3.) COUNSEL appearing for the respondent/complainant on the other hand supported the judgment passed by the Learned Additional Sessions Judge. Counsel submitted that the learned Appellate Court has appreciated the legal position correctly and there is no infirmity, illegality or perversity in the order passed by the said Court.