V.P. SAKHARIYA Vs. V. ABDUL AZEEZ

JUDGEMENT

(1.) THE complainant as an appellant challenging the judgment of acquittal passed by the learned Judicial Magistrate (Sub -Judge) at Mahe in C.C. No. 47 of 2004 on 12.05.2005 acquitting the respondent/accused from charges under Section 138 of Negotiable Instruments Act, 1881 has preferred the present appeal.

(2.) THE learned counsel for the appellant/complainant would submit that the appellant and the respondent entered into an agreement/Ex. D.2, dated 20.02.2003 by which the appellant agreed to invest a sum of Rs. 6,00,000/ - (Rupees Six Lakhs Only) in the business venture and the respondent/accused agreed to pay 35% of the profit within one year and if the business runs in loss, the respondent/accused agreed to return the money invested by the appellant with 22% interest. On the very same date of execution of the agreement, the respondent/accused issued Ex. P.1/Cheque for a sum of Rs. 7,32,000/ - without filling the date. Since the respondent/accused did not pay any money even after the time specified in the agreement, the appellant/complainant filled up the date and presented the Ex. P.1/Cheque for encashment. However, the said cheque was returned as 'insufficient funds'. The memo issued by the Union Bank of India is marked as Ex. P.2. Hence statutory notice under Section 138(b) of Negotiable Instruments Act, 1881 has been issued under Ex. P.3/Notice dated 03.03.2004 to the respondent, for which the respondent issued Ex. P.4/Reply dated 25.03.2004 stating that the respondent has no personal liability. The postal receipt is marked as Ex. P.5, Postal acknowledgment is marked as Ex. P.6 and the Statement of Account is marked as Ex. P.7. The appellant also preferred a complaint under Section 406 and 420 IPC and a case has been registered in Crime No. 103 of 2004. The respondent/accused pleaded that he has not borrowed the money as alleged by the appellant but the appellant has only invested the amount in the business of a partnership firm 'Yes Coffee curing works' in the respondent/accused is one of the partner and to prove the same, Ex. D.1 to Ex. D.3 were marked.

(3.) CHALLENGING the judgment of acquittal passed under Section 139 of the Negotiable Instruments Act, the learned counsel appearing for the appellant would raise the following points: