SANAL KUMAR Vs. RAJEEV KUMAR

JUDGEMENT

(1.) This appeal is directed against a judgment of acquittal rendered by the learned Magistrate in a prosecution under Sec. 138 of the Negotiable Instruments Act.

(2.) The Complainant/appellant alleged that the accused had agreed to pay an amount of Rs. 1 lakh to the complainant for constructing a house as directed by him. The work was completed. Only an amount of Rs. 61,000/- was paid. For discharge of the liability to pay the balance amount of Rs. 39,000, Ext.P-1 cheque was issued. The said cheque when presented for encashment was dishonoured by the bank on the ground that sufficient amount is not available in the account. Ext.P-2 and P-3 are the memoranda of dishonour and intimation. Notice of demand Ext.P-4 was issued as required by law. It succeeded in evoking only Ext.P-5 response. Payment was not made. It was in these circumstances that the complainant came to court with this complaint under Sec. 138 of the Negotiable Instruments Act.

(3.) The accused denied the offence. The complainant examined himself as P.W. 1. Exts. P-l to P-5 were marked. In the reply notice Ext.P-5 as also by examining his mother as D.W. 1 and by marking Exts.D-1 to D-5 the accused took up a plea that the cheque was not issued for the discharge of a legally enforceable debt/liability. The issue of the cheque was admitted. The contention was that the cheque was obtained by using force, fraud and coercion.