SUVARNA SANJAY GANDHI Vs. SHANTILAL SUKHRAJ KOTHARI

JUDGEMENT

(1.) THE submissions of the learned counsel appearing for the applicant and the learned counsel appearing for the 1st respondent are heard. The applicant is the original complainant in a complaint under section 138 of the Negotiable Instruments Act, 1881. The case of the applicant is that she had advanced a sum of Rs.2 lacs to the 1st respondent accused as the 1st respondent was in financial difficulty and that the applicant had family relationships with the 1st respondent. In discharge of the alleged liability of repayment of the said loan, a cheque dated 25th June 2004 was issued by the 1st respondent which has been dishonoured. After serving notice of demand, the present complaint has been filed. Though the applicant had attempted to invoke section 420 of the Indian Penal Code, the process appears to have been issued only under section 138 of the Negotiable Instruments Act, 1881. The order of acquittal passed by the learned trial Judge is on two grounds. The first is that there was no proper service notice and secondly, the presumption under section 139 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act) stands rebutted. The trial Court has held that the applicant has not adduced any evidence to prove that he had advanced a sum of Rs.2 lacs to the 1st respondent.

(2.) THE learned counsel appearing for the applicant invited my attention to the impugned order as well as notes of evidence. He stated that as far as service of demand notice is concerned, an employee of the postal department was examined. He submitted that the learned Judge has referred to certified copy of the Index II produced by the 1st respondent which shows that residential flat of the 1st respondent was transferred on 03rd August 2004. He pointed out that the notice was attempted to be served at the shop premises of the 1st respondent and the same was returned with the remark "refused". He submitted that even the warrant issued by the learned Magistrate to the complaint was served at the same address which is mentioned in the notice.

(3.) THE perusal of the averments made in the complaint show that the applicant had family relationship with the 1st respondent and as the 1st respondent was in financial difficulty, the applicant had advanced a sum of Rs.2 lacs from time to time in the period between January 2004 to March 2004. Same are the averments made in the affidavit in lieu of examination-in-chief of the applicant. In the cross-examination, the applicant stated that her husband was employed with Mahavir Trading Company. She stated that she had paid the amount to the 1st respondent by instalments and she was prepared to produce the entries made by her in writing. She stated that the minimum amount paid by her to the 1st respondent was Rs.15,000/- and maximum was Rs.80,000/-. She stated that though her occupation has been shown as household in the affidavit in lieu of examination-in-chief, she was carrying on a small business of selling sarees. She stated that she had not obtained any licence in under the Shops and Establishments Act, 1948 for the said business. She stated that she was possessing certain amount which was to be utilised for construction of her house. As the construction activity was stopped, she was in possession of the said amount. She stated that she was not possessing PAN Card of the Income Tax. She could not disclose the salary of her husband.