S PARMINDER SINGH Vs. SANDEEP

JUDGEMENT

(1.) This appeal has been preferred against the order dated 22.7.2005 of the learned Metropolitan Magistrate whereby the complaint of the appellant/complainant under Section 138 of Negotiable Instruments Act was dismissed. The complainant in his complaint stated that the accused had borrowed a sum of Rs. 2 lac from him on 26th December, 2000 and at the time of borrowing the money, the accused gave a post dated advance cheque Ex. CW1/A dated 14th April, 2001 to the complainant for the sum of Rs. 2 lac. The accused had assured the complainant that the complainant could get the cheque encashed on or after 14th April, 2001. Complainant presented this cheque on 17th April, 2001 to the bank and the cheque got dishonoured because of insufficient funds. Thereafter a notice was served upon the accused, despite service of notice accused did not make the payment.

(2.) The accused did not deny taking of loan but stated that at the time of taking loan, he had given 8 pieces of gold ornaments to the complainant as security. Out of Rs. 2 lac of loan, he had paid Rs. 1.5 lac and he was liable to pay only Rs. 50,000/-as balance amount and Rs. 8,000/-as interest in April, 2001, since the loan was taken only for a short period of four months. When he went to pay the balance amount and sought his ornaments back, the complainant told him that he had already sold his ornaments for sum of Rs. 55,000/-on 13th April, 2001, without any intimation to him, so he did not pay the balance amount of Rs. 58,000/-. Regarding the post dated cheque, the accused took the stand that the complainant used to organize chit fund and he (the accused) was a member of chit fund and at the time of becoming member of the chit fund, to ensure the payment of installment, complainant used to retain blank cheque from the person whosoever took the chit. The accused's chit was over, so he demanded his blank cheque, which was not returned to him and later on this was misused by the complainant.

(3.) It is argued by the counsel for the appellant/complainant that the trial court acted contrary to the facts. In the judgment, trial court has mentioned that it was admitted by CW 1 that the accused had to pay a sum of Rs. 58,000/- to him though he alleged that his amount was payable by accused in some other loan account. While, in fact, complainant had not made any admission rather complainant has categorically stated that accused had not returned Rs. 1.5 lac out of Rs. 2 lac to him. The trial court also did not consider the two different stands taken by the accused; one at the time of making application for recalling summoning order and other at the time of trial. While in application for recalling summoning order accused admitted receipt of notice, during trial accused denied receipt of notice. The accused was therefore not a reliable witness and his plea should not have been considered.