LUMDEO Vs. RAVINDRA

JUDGEMENT

(1.) Challenge is to the judgment and order dated 19.05.2005 rendered by the Judicial Magistrate First Class, Bramhapuri in Summary Criminal Case 719/2002, by and under which, the accused/respondent is acquitted offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ("Act" for short).

(2.) The appellant original complainant instituted complaint under Section 138 read with Section 142 of the Act, the gist of which complaint is that the accused borrowed Rs.17,000/in cash from the complainant on 22.04.2002 at the residence of the complainant at Bramhapuri and as security issued cheque dated 10.07.2002 drawn on the United Western Bank Limited Wadsa (Desaiganj). The cheque was dishonoured, statutory notice was issued which the accused refused to accept and since the accused did not make the payment covered by the cheque within the statutorily prescribed period, the complainant approached the court under Section 138 read with Section 142 of the Act.

(3.) The accused did not dispute the issuance of cheque. In statement of the accused recorded under Section 313 of the Criminal Procedure Code the accused denied that he borrowed Rs.17,000/from the complainant and the cheque was issued as security. However, in response to question 13 the accused stated that he refunded Rs.17,000/in presence of witnesses on 20.09.2002, the complainant did not return the cheque. The learned counsel for the complainant Shri Shukla relies on the said answer in response to question 13 to urge that the accused admitted that he borrowed Rs.17,000/which is evident from the use of expression "refunded". I am afraid, I cannot concur. The use of the expression "refunded" must be understood in the context of the entire statement and the defence.