VIRENDRA VEER ARYA Vs. DHANSAROVAR FINANCIERS AND OTHERS

JUDGEMENT

(1.) PRESENT appeal is directed against the judgment dated 06.08.1996 passed by Sri Sanjiv Kumar, Judicial Magistrate, And, Dehradun, by which the respond­ents-accused have been acquitted for the offences under sections 406, 420 of the Indian Penal Code and section 138 of the Negotiable Instruments Act, 1881. Brief facts of the case are that appel­lant Dr. Virendra Veer Arya filed a com­plaint before Judicial Magistrate, Dehradun alleging that Kapil Agarwal and his wife Anita Agarwal were running a registered Financing Firm by the name of M/s. Dhansarovar Financiers. They presented to the complainant that if he de­posited a fixed amount on regular basis, he will receive an attractive bonus on his deposit. Therefore, complainant opened an account bearing no. 1381 with the said Firm and started depositing the amount. When his father fell sick, he required money for his treatment, therefore, a re­quest was made for payment of Rs.3690/- to the accused persons. The accused is­sued a cheque bearing no.595.103 dated 23.11.1993 of Rs.2952/- and also got the signature of the complainant on the blank receipt voucher. The complainant refused to receive the said cheque on the ground that he wanted entire amount deposited by him. The accused respondents refused to make the payment of entire amount before the date of maturity. Accordingly complainant returned the said cheque to the accused and arranged the amount from other source. He deposited an amount of Rs.1785/- on 25.11.1993 vide receipt no. 128784; therefore, his account became complete before the date of ma­turity.

(2.) THE accused issued a cheque bear­ing no.595104 dated 10.04.1994 for a sum of Rs.6,022/- and got the complain­ant's signature on a blank receipt voucher. Complainant put his signature on the blank receipt voucher in good faith. He presented the aforesaid cheque in the Bank, however, the bank returned the cheque with the remark "Stop pay­ment". Accordingly, complainant got a demand notice issued to accused through his Advocate on 18.04.1994 for entire amount, deposited by him with 18% in­terest. The notice was received by the ac­cused persons on 26.04.1994. The ac­cused orally represented to the complain­ant that they had given instructions to this Bank for stopping the payment because they were in need of finances. They per­suaded the complainant to present the cheque after some time. Accordingly, complainant presented the cheque on 30.04.1994. However, the cheque was again returned with same the remarks "Stop payment by drawer" and "insuffi­cient funds". The complainant, therefore, again got demand notice issued through his Advocate on 11.05.1994, to which the accused submitted reply on 13.05.1994 stating that they had already made the payment of Rs.7,000/- in cash to the complainant. According to the complainant, he has been cheated by the accused persons in order to misappropri­ate the amount deposited by him. Com­plainant never received a sum of Rs.7000/- in cash from the accused per­sons. It was further submitted that ac­cused have cheated a number of other persons in the area of Doiwala in similar manner and have now closed the Firm.

(3.) THE accused was examined under section 313 Cr.P.C. and they denied all the allegations stating that they have made the entire payment along with inter­est to the complainant and nothing is due. In defence, Kapil Agarwal himself appeared as DW 1. He produced the payment voucher dated 25.11.1993 (Ex.Kha-1) bearing the signature of com­plainant with regard to the receipt of the cheque no.595104 of Rs.6022/-. He also produced the voucher receipt bearing sig­nature of complainant (Ex.Kha-2) by which a sum of Rs.7000/- was paid in cash and reply of the notice (Ex-Kha-3). The learned Trial court after taking into consideration the entire evidence and documents and papers on record, ac­quitted the accused. Heard Sri B.S. Adhikari (Amicus Curiae) for the appel­lant and Sri M.K. Goyal, learned counsel for the respondents and perused the material available on record.