SANJAY MISHRA Vs. KANISHKA KAPOOR ALIAS NIKKI

JUDGEMENT

(1.) The submissions of the learned Senior Counsel appearing for the applvcant were heard in support of this application under sub-section (4) of section 378 of the Code of Criminal Procedure, 1973.

(2.) The applicant is the complainant. The applicant filed a complaint against the 1st respondent alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act).

(3.) With a view to appreciate the submissions made by the learned Senior Counsel appearing for the applicant, it will be necessary to refer to the facts of the case in brief. According to the case of the applicant the 1st respondent approached him in September 2004 through one Mrs. Kalayni Singh. The said Mrs. Kalyani Singh was known to the applicant. THE 1st respondent represented that she was in need of financial assistance and she agreed to return the amount advanced within a period of three months to the 1st respondent. The applicant advanced a friendly loan of Rs. 15 lacs to the 1st respondent. She executed a hundi on 15th September, 2004 in the sum of Rs. 15 lacs and also issued a cheque dated 28th December, 2004 favouring the applicant. The said cheque was dishonoured and after issuing notice, the present complaint was filed by the applicant. The learned trial Judge passed an order of acquittal. The learned Judge held that the applicant has failed to establish that the cheque was issued by the 1 st respondent in discharge of legal liability of the loan amount. The learned Judge observed that the 1 st respondent has denied her signatures on the bill of exchange as well as the cheque subject-matter of the complaint. The learned Judge has taken into account various circumstances borne out by the evidence on record and has passed order of acquittal. The learned Judge also considered the admission of the applicant that the amount advanced was an unaccounted amount which was not disclosed to the Income Tax Authority.