SAU DWARIBAI NANAKRAM JIVATRAMANI Vs. RAHUL TRADING COMPANY

JUDGEMENT

(1.) This appeal is filed challenging the judgment and order of acquittal passed by the learned Judicial Magistrate, First Class, Court No.2, Akola, dt.17.11.2008 in Summary Criminal Case No.87 of 2005 whereby the respondent/accused was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act.

(2.) The learned Advocate for the appellant (Original Complainant) submitted that the accused used to purchase goods on credit from the proprietary firm of the Complainant and in discharge of liability of the goods purchased on credit, the accused had issued a cheque bearing No.146912 drawn on Abhinandan Co operative Bank Ltd., Amravati Branch, Amravati for a sum of Rs.37,826/ . The cheque appears at Exh.35, dt.17.11.2004. According to the appellant, the cheque was dishonored on 19.11.2004 with remarks "payment stopped by the drawer" Memo (Exh.36) was received from the collecting Banker. Thereafter, notice dt.26.11.2004 was sent to respondent/accused demanding the sum of Rs.37,826/ in respect of the dishonuored cheque informing the accused that if payment is not made, complaint u/s.138 of the Negotiable Instruments Act will be filed. It is not in dispute that the demand notice was served and reply to the demand notice was sent by the respondent/accused.

(3.) Reply dt.14.12.2004 was sent by the respondent/accused disputing liability for to pay the amount demanded on the ground that the two cheques one bearing no.146912 and the another bearing no.146913, which were blank, were handed over to the Complainant through its representative Mr.Pawan Bhutada on 13.5.2004 when the accused had placed the order of goods (Agarbatis) for a consideration of Rs.21,390/ . The goods were supplied from the appellant under Bill No.509, dt.19.5.2004 and against that transaction, demand draft in the sum of Rs.21,390/ bearing No.256888, dt.17.6.2004 was sent to the Complainant. It is also contended by reply that it was only order given by the accused on 13.5.2004 when representative of the Complainant Mr.Bhutada came to Amravati and asked for the cheque as security of business. Thus, the demand notice was disputed on the ground that there was no other transaction except transaction dt.13.5.2004 between the Complainant and the accused and no other goods were purchased by the accused. It is also alleged that the Complainant must use the blank cheques and filled in the amount as per his wish without there being any liability to pay the amount. In reply, the accused had also contended that he had asked Mr.Bhutada (representative of the Complainant) in July, 2004 to return the blank cheques, dt.15.8.2004. Under these circumstances, the accused had informed his banker to stop payment in respect of both the cheques by letter dt.19.8.2004 (Exh.54), which was a letter issued prior to presentation and dishonour of the cheque. A case was put up by the accused that the Complainant had misused the cheques which were handed over to the representative as a security in respect of the business transactions and that no cheque was issued in discharge of legally existing liability.