PAWAN GUPTA Vs. STATE

JUDGEMENT

(1.) A complaint was lodged by respondent no. 2 under Section 138 of the Negotiable instruments Act, 1881 ("the said Act" for short) impleading the petitioner as the accused. The complaint was based on the allegation that in May, 2001, the petitioner came to respondent no. 2 and requested for a loan for the tuition fee of his son who is studying in Mumbai. The loan was advanced on 28. 05. 2001 for a period of ten months and the petitioner issued two cheques for Rs. 25,000/- each on 08. 11. 2002 and 14. 11. 2002. These cheques were dishonoured on presentation due to insufficient funds as per the memo dated 13. 03. 2003 issued by the concerned bank. The respondent no. 2 issued a legal notice dated 26. 03. 2003 whereafter the complaint was filed. On the complaint being filed, the summoning order was passed on 19. 09. 2003.

(2.) THE petitioner did not dispute his signatures on the cheques as also the factum of the amounts being filled in his own hand writing. However, the defence set up by the petitioner was that the name of the person in whose favour the cheque was drawn was left blank and these cheques were given over to the brother of the respondent no. 2 who had arranged for the loan of Rs. 50,000/ -. It is stated that the brother of respondent no. 2 paid him only Rs. 15,000/- who obtained cheques worth Rs. 50,000/- and the remaining balance of Rs. 35,000/- was not paid. Thus legally enforceable right for encashment of cheques was not available to the respondent no. 2.

(3.) ANOTHER defence raised by the petitioner was that a legal notice was served on the petitioner prior to the legal notice in question and the cheques in question were re-presented after the same whereafter the second legal notice in question was issued. It was thus pleaded that the complaint based on the second legal notice was not maintainable.