SANTOSH MITTAL Vs. SUDHA DAYAL

JUDGEMENT

(1.) CHALLENGE in this appeal u/s 378(4) Cr.P.C is to the judgment of acquittal dated 30.01.2013 passed by learned Metropolitan Magistrate in CC No.14114/1 in Complaint case filed u/s 138 read with Section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act'.

(2.) BEFORE addressing the rival submissions made by the learned counsels for the parties, it would be apt to survey the facts leading up to the present litigation. A complaint under Section 138 of the Act was filed by the appellant, inter alia, on the allegations that accused was an intimate and close friend of the family of the complainant and under the influence of friendship, the accused had requested for a friendly loan of Rs.1 lac somewhere in the beginning of February, 2009. Subsequently, on 13th February, 2009, the complainant had paid Rs.1 lac in cash as loan to the accused as she was in dire need of funds and was facing financial crisis. In lieu of loan, the accused had issued post dated cheque bearing No.150731 dated 14th May, 2009 of Rs.1 lac drawn on SBI in favour of the complainant. The complainant deposited the said cheque after one month from due date, as requested by the accused but the same was dishonoured with the remarks "fund insufficient" vide memo dated 18th June, 2009. On assurance of the accused to present the cheque again, complainant presented the cheque for encashment on 2nd July, 2009 but again the cheque was returned with remarks "insufficient fund" vide memo dated 2 nd July, 2009. Same was the fate of the cheque when again presented on the assurance of the accused on 9th November, 2009. Thereafter, complainant sent a legal notice dated 18th November, 2009 calling upon the accused to pay the cheque amount. Despite receipt of legal notice, the accused did not pay the cheque amount. Therefore, the complainant was constrained to file the complaint.

(3.) THE respondent/accused admitted to having given a cheque to the complainant, however, the defence taken was that a blank cheque was given to the complainant without date and amount as complainant misguided her. She had no liability to pay the cheque amount, as such, payment was not made.