LALJI BANSANARAYAN CHOUBEY Vs. JIYALAL CHAVAN

JUDGEMENT

(1.) Challenge in this appeal is to judgement of acquittal rendered by learned Judicial Magistrate (F.C.), in Summary Criminal Case No. 1525/1997 whereby and whereunder respondent No. 1 - Jiyalal came to be acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881.

(2.) There is no dispute about the fact that the appellant and the respondent No. 1 were acquainted with each other. So also, there is no dispute about the fact that the respondent No. 1 issued a cheque No. C532820 dated 16-01-1996 for Rs. 20,000/- drawn on the United Western Bank Limited, Aurangabad, in favour of the appellant/complainant. The cheque in question (Exh-26) was presented by the appellant to his Bank, namely, the Indian Overseas Bank, Aurangabad branch. The cheque was returned to him on 28-02-1996 with an endorsement "funds not arranged for". The cheque had bounced and as such, a demand notice was issued to the respondent No. 1 on 06-03-1996 by the appellant through his advocate. The demand notice was duly served on him. The respondent No. 1 gave reply dated 30th March, 1996 whereby he denied the existence of liability to pay the amount shown in the cheque. The appellant thereafter filed the private complaint case for offence punishable under section 138 of the Negotiable Instruments Act against the respondent No. 1.

(3.) At the trial, the appellant examined himself in support of his case. The respondent No. 1 examined himself and DW Sanjay in order to buttress his defence. It was the defence of the respondent No. 1 that he had agreed to purchase eight (8) plots from the appellant of 25 feet x 30 feet each at rate of Rs. 10,000/- for each of them. He had paid advance amount of Rs. 6000/- in cash when the agreement of sale was orally settled. He issued the cheque in question (Exh-26) towards further payment of earnest amount in pursuance to the agreement of sale. He lateron came to know that the appellant was not owner of those plots and the two (2) plots which were owned by him were already sold in favour of one Shri Tufane. It was due to frustration of the oral agreement of sale that he did not arrange for payment of the amount shown under the cheque.