NILESH SHARMA Vs. KAMAL GARG

JUDGEMENT

(1.) The present petition under Sec. 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.'), has been filed on behalf of Mr. Nilesh Sharma, the petitioner herein, seeking setting aside of impugned order dtd. 25/11/2022, passed by learned Presiding Officer, Special Court (N.I. Act), South-West, Dwarka Courts, New Delhi ('Trial Court')in Ct. Cases 26456/2017, titled as "Kamal Garg vs. Nilesh Sharma", whereby the learned Trial Court has dismissed the application filed by the petitioner under Sec. 311 of Cr.P.C. to call Sh. Vikas Kumar Sharma as defence witness.

(2.) Briefly stated, the facts of the case as per the complaint filed by the complainant/respondent under Sec. 138 of Negotiable Instruments Act, 1881 ('N.I. Act') are that the accused/petitioner was neighbor of the complainant and had been residing in the same vicinity. It was stated that the accused, by exploiting the friendly relationship with the complainant, had taken a friendly loan of Rs.4,00,000.00 from the complainant on 29/1/2016. However, the accused had failed to repay the loan, leading to repeated requests and persuasion by the complainant. Thereafter, the accused had issued a cheque bearing no. 470761, dtd. 4/11/2017, drawn on Syndicate Bank, Nangloi No. 1, Najafgarh Road, Delhi-110041, for a sum of Rs.4,00,000.00 towards the discharge of his loan amount. The complainant had accepted the cheque based on the representation and assurance of the accused that it would be honored. Upon presentation, the cheque was returned as dishonored by the banker of the accused vide return memo dtd. 9/11/2017 for the reasons "Funds Insufficient". Despite receiving a legal notice dtd. 21/11/2016, dispatched on 22/11/2016, by the counsel for complainant, demanding payment within 15 days, the accused had neither replied nor made any payment, even after being served with the notice of demand. Accordingly, the present complaint under Sec. 138 of N.I. Act was filed.

(3.) Learned counsel for the petitioner argues that the respondent herein had preferred the aforesaid criminal complaint under Sec. 138 of N.I. Act against the petitioner on the basis of a cheque purportedly issued by the petitioner herein. It is stated that the defence and case of the petitioner is that the cheque in question had been issued from account bearing no. 90151250001523, maintained with Canara Bank (formerly known as Syndicate Bank), Najafgarh Road No. 1. Nangloi, New Delhi 110041, by a proprietorship concern namely "M/s. Shri Shyam Industries" and of which Sh. Vikas Kumar Sharma i.e. brother of the petitioner was the sole proprietor, and even though the petitioner is signatory of the cheque in question, the same has been signed by the petitioner as merely authorised signatory of the proprietorship concern "M/s. Shri Shyam Industries" and was not issued by petitioner from his personal account. It is further stated that in order to prove the above stated facts, petitioner had filed a list of defence witnesses before the learned Trial Court wherein inter alia name of Canara Bank was also duly stated in order to seek production of documents pertaining to account opening along with other relevant documents with respect to account no. 90151250001523, however, the official of Canara Bank deposed before the learned Trial Court that all the records pertaining to opening/ownership of said account were not available with the bank as the same were burnt down in a fire and an F.I.R. to that effect was registered.