UMAKANT GIRDHARRAO SHIRURE Vs. BALASAHEB GYANOBA GAIKWAD

JUDGEMENT

(1.) This is an appeal against acquittal of the respondent for offence u/s 138 of the Negotiable Instruments Act (here in after referred to as 'NI Act') by learned Judicial Magistrate First Class, Chakur, in Summary Criminal Case No. 1070 of 2002.

(2.) As per the complaint, the complainant/appellant is resident of Nalegaon, Tq. Chakur. He was agriculturist by profession. He was knowing the accused/respondent r/o Ashta, Tq. Chakur, for 10 years. On 01.03.2001, the accused demanded from him a sum of Rs. 75,000/as a hand loan for household expenses. He had agreed to refund the amount with in three months. The complainant paid the amount to him and the accused issued to him a postdated cheque dt. 01.06.2001. The accused did not make repayment. Hence on 22.06.2001, the complainant presented the cheque in his bank. The said cheque was returned along with memo of dishonour dt.22.06.2001 for insufficient funds. The complainant issued notice dt.02.07.2001. the accused received it on 03.07.2001 but did not reply or comply. Hence, the complaint was filed on 13.08.2001.

(3.) The complainant examined himself only and produced documents. The ld. trial Judge held that the cheque was issued towards security. He relied on Shaku Concretes (P) Ltd. v. State of Gujarat 2000 Cr.L.J. 1988 (Gujarat) to hold that the cheque issued at the time of payment for security is not towards discharge of legally enforceable debt. Therefore, the presumptions u/s 118 and 139 Negotiable Instruments Act are not applicable. There was no other evidence of existence of legally enforceable debt. Hence, the accused was acquitted.