KAMAL BABULAL SHARMA Vs. RAMKUMAR SAGARMAL

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 08/6/2001 passed in Summary Criminal Case No.14408 of 1998 by 9th Judicial Magistrate, First Class, Akola, thereby acquitting the respondentsaccused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1988 (the N.I. Act, for short). The criminal proceedings initiated under Section 138 of the N.I. Act against the respondents related to a cheque bearing No.656523 dated 23/2/1998 for Rs.25,000/It was issued by respondent No.1 being the HUF of which respondent No.2 was the manager at the relevant time. It was signed by respondent No.2 as the manager of respondent No.1HUF.

(2.) Upon return of the cheque by the Bank of the appellant, the appellant issued notice within the stipulated period of time to the respondents calling upon them to make payment of the cheque amount. The respondents replied the notice. While the respondents did not deny issuance of the cheque, they took a stand that first cheque was issued by the respondents on the assurance given by the appellant that amount of the cheque would be sent later on by the appellant. It was submitted that thereafter the appellant never sent the amount of the cheque and, therefore, they sent a letter to the appellant requesting him to send the amount of the cheque, but in vain. According to the respondents, the cheque came to be issued without incurring of any liability by them and, therefore, there was no question of making payment of the cheque amount.

(3.) The proceedings under Section 138 of the N.I. Act, upon denial of the liability by the respondents, came to be initiated and the respondents were prosecuted for an offence relating to dishonour of the cheque. After considering the evidence on record and hearing the arguments of both sides, the learned Magistrate found that the cheque in question was issued towards discharge of legally enfoceable liability by the respondents and that the respondents could not rebut the presumption raised in law in this regard as per Section 139 of the N.I. Act. Even then, the trial Court did not find the respondents as guilty of the offence with which they were charged and the reason therefor was that the notice issued by the appellant demanding payment of the amount of the cheque was invalid. According to the learned Magistrate, this notice did not specify the amount of the cheque in any manner. Thus, the respondents were given acquittal by the judgment and order dated 08/6/2001. It is the same judgment and order, which are under challenge in the present appeal.