KULVINDER SINGH Vs. KAFEEL AHMED

JUDGEMENT

(1.) THIS is a leave to appeal petition filed by the petitioner against the impugned judgment dated 9.9.2011 by virtue of which the learned Metropolitan Magistrate has acquitted the respondent/accused in respect of a case under Section 138 of the Negotiable Instruments Act.

(2.) BRIEFLY stated the facts of the case are that the petitioner filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent claiming that the respondent had approached the complainant for a friendly loan of 10 lacs for expanding his business whereupon the petitioner gave a loan of '9,30,000/- in the month of February, 2006 to the respondent. The respondent issued a post dated cheque bearing No.593765 dated 2.5.2006 for the aforesaid loan amount which, on presentation, was dishonoured with the remarks 'insufficient funds'. After complying with the legal requirement of sending a statutory notice, the present petitioner filed a complaint against the respondent. The petitioner produced pre-summoning evidence whereupon the respondent was summoned and a notice under Section 251 Cr.P.C. was served and the petitioner/complainant was cross- examined by the respondent. The respondent took the plea that the cheque in question was signed by him; however, the same was issued to the petitioner in the month of July, 2004 along with one more cheque bearing No.593766. These two cheques were purportedly issued by the respondent to the petitioner as the petitioner was running a committee and a person who would give the highest bid for taking the committee, had to pay the balance installments during the committee period and in order to secure the interest of other committee members, a security blank cheque was taken from the members of the committee. It is stated that after the committee period came to an end, the respondent asked the petitioner to return the cheque in question which was duly signed by him, however, the petitioner took the plea that the cheque in question was misplaced by him. It seems that surreptitiously the petitioner had thereafter filled up the amount and presented the cheque for encashment. In support of his defence, the respondent produced two witnesses DW-2, Gulam Moinuddin and DW-3, Masoom, who supported the statement of the respondent, who testified as DW-1 and took the plea that the cheques were issued as security at the time of functioning of the committee. All the three witnesses including the respondent were cross- examined by the petitioner; however, their testimony could not be dented. After hearing the arguments, the learned trial court acquitted the respondent/accused by giving a reasoning, firstly, that the petitioner had given a huge amount ofv 9,30,000/- as loan to the respondent, however, the petitioner has failed to show as to from where such an amount could be generated by him. Secondly, his cross-examination was also evasive as the amount of loan was neither reflected in the income-tax return nor was he able to give the details of the Ward number or the information as to whether the cheque bearing No.593766 was encashed by him on 5.7.2004 amounting to 18,000/ - because both the cheques, that is, the cheque bearing No.593765, the cheque in question and another cheque bearing No.593766, the next leaf of the cheque book in question, are stated to have been issued by the respondent. The learned trial court has placed reliance on number of judgments including the judgment of the Apex Court in case titled K. Prakashan Vs. P.K. Surenderan; 2007 IX AD (S.C.) 334 = (2008) 1 SCC 258 to hold that the presumption of the cheque in question having been issued in discharge of debt gets dislodged because of the testimony of the respondent apart from the fact that he is not able to give the source of such a huge amount having been advanced as a loan.

(3.) I have heard Mr. Prag Chawla, the learned counsel appearing on behalf of the petitioner. He has contended that the learned trial court has committed gross error in appreciating the evidence, It is stated by him that the petitioner was able to establish that a loan amount of 9,30,000/- was given to the respondent for which the cheque was issued and it was not necessary for the petitioner to show the source of income. Under these circumstances, the respondent ought to have been convicted while as he has been acquitted.