PALRAJ Vs. LALCHANDH

JUDGEMENT

(1.) THIS appeal is against the order of acquittal passed by the learned Judicial Magistrate No. 4, Thiruchirapalli, C.C. No. 22 of 1993, for the offences under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the Act").

(2.) THE appellant/complainant has stated in his complaint that the respondent/accused borrowed a sum of Rs. 12,000 from him on September 19, 1992, that when he demanded the payment of the loan, the respondent/accused, without paying the amount, has issued a cheque dated October 19, 1992, which is marked as exhibit P.1 for a sum of Rs. 12,000 drawn on Karur Vysya Bank, that he presented the cheque for collection of the amount through the Punjab National Bank on October 21, 1992, but the cheque was returned dishonoured on October 22, 1992. The complainant would further state that he issued a notice to the accused on November 3, 1992, under the original of exhibit P.4, informing the dishonour of the cheque, but the accused has sent a reply/exhibit P.5 dated November 4, 1992, stating that the cheque was issued as security in the chit transaction and he has not committed the offence under Section 138 of the Act. The complainant, thereafter, had filed the complaint before the Judicial Magistrate under Section 138 of the Act.

(3.) THE complainant examined himself as P.W.1 for the transaction and the issuance of the cheque by the accused. P.W.2 who is an employee in the Punjab National Bank, has spoken about the bouncing of the cheque. The accused had examined himself as D.W.1 and two other witnesses on his side. In his evidence, he has stated that the cheque was issued at the time when he received the prize amount for the chit transaction and this was issued only as a security for the future payment, that he had paid the subscription up to the 17th instalment for two chits, but as he refused to issue the receipts and he also did not pay the prize amount to his friends DWs. 2 and 3, who became subscribers of the chit on his request, he did not pay the subsequent subscriptions and it will not amount to offence under Section 138 of the Act. D.Ws. 2 and 3 also have stated that the prize amount was not paid to D.W.1 and they questioned the accused as they became the subscribers of the chit only at the instance of the accused and, therefore, he was responsible for the payment to D.W.1.