MUKESH KUMAR Vs. STATE & ANR.

JUDGEMENT

(1.) The present leave petition is directed against the judgment dated 28.04.2015 passed by the learned MM (S)-01, NI Act, Saket Courts in CC No.5206/01, whereby the respondent/accused has been acquitted of the offence under Sec. 138 of Negotiable Instruments Act on the complaint of the petitioner.

(2.) The submission of the petitioner is that the loan taken by the accused had been acknowledged by him in a Memorandum of Settlement (MOS) dated 15.10.2010 (Ex. CW-1/1); the receipt executed by the accused on the same day i.e. 15.10.2010 (Ex. CW-1/X), and; the promissory note dated 15.10.2010 (Ex. CW-1/2 colly). The cheque dated 15.06.2011 was issued towards repayment of the loan as recorded in the MOS dated 15.10.2010. Despite this being the position, the Trial Court has travelled into a wholly unnecessary area of inquiry, by inquiring into the financial capacity of the complainant. On this aspect, it is submitted that during his cross examination, the complainant had stated that he was doing his business at the time of grant of loan and his saving was Rs.50,000.00 p.m.

(3.) Learned counsel points out that the defence of the accused was that he had taken loan from one Manoj Kumar, which he had allegedly repaid. The accused had claimed that the cheque in question had been given to Manoj Kumar towards security, which had been misused by the complainant. Neither Manoj Kumar was produced, nor the taking of loan from Manoj Kumar was evidenced, much less, the return of loan was evidenced. It was not explained as to why the cheque was not taken back from the so-called Manoj Kumar when the loan taken from him was allegedly repaid, and why the accused took no steps if the cheque was not returned by Manoj Kumar even though the loan was allegedly repaid.