EVEREST INDUSTRIES LTD Vs. GULAB MALVIYA

JUDGEMENT

(1.) This appeal is directed against the impugned judgment dated 13.12.2012 wherein the respondent stands acquitted in complaint case No.5203/1 filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act).

(2.) The complainant is aggrieved by the said judgment. His submission is that the provisions of the said Act have not been appreciated in the correct perspective; a presumption had arisen in favour of the complainant and unless and until, this presumption stood rebutted which in this case was not done coupled with the fact that the accused had admitted that he had issued the cheque, the impugned judgment holding that the respondent is entitled to an acquittal suffers from a clear illegality. It is liable to be set aside.

(3.) Arguments have been refuted by the learned counsel appearing for the respondent. His submission all along is that although he has issued an undated cheque in favour of the complainant yet the goods were not received by him and in the absence of a legally enforceable debt, the ingredients of Section 138 of the said Act are not satisfied.