DHARANIDHAR Vs. NASIRKHAN

JUDGEMENT

(1.) This appeal has been filed by the complainant against the order dated 7-5-2002 passed by the 11th Addl. Sessions Judge, Indore, in Criminal Appeal No. 363/2001, by which learned lower Appellate Court reversed the judgment passed by the Judicial Magistrate First Class, Indore, in Criminal Case No. 2803/1999 and acquitted the respondent accused for the offence punishable under section 138 of Negotiable Instruments Act, 1881. The applicant-Dharanidhar Mishra, filed a complaint against the non-applicant-Nasir Khan, under section 138 of Negotiable Instruments Act, 1881 (henceforth 'the Act'). The applicant alleged in his complaint that non-applicant had taken a loan of Rs. 2,00,000/- from him on 24-2-1997. He promises to repay after 24 months and to pay interest at the rate of 18% per annum. In lieu of loan, he mortgaged his shop by executing a documents Exhibit P/10 in his favour. He also created a second charge on his shop No. 9 as security for the loan and unregistered agreement Exhibit P/10 was executed by him. The non-applicant, however, could not make the payment of principal amount or interest. Therefore, on 11-2-1999, he handed over a cheque for Rs. 2,85,000/- to the complainant. The applicant presented the cheque to the bank. The bank dishonoured the cheque issued by the non-applicant with the remark that "non-applicant closed his bank account". The dishonored cheque along with the advice of the bank was returned to the applicant on 13-2-1999.

(2.) Thereafter, applicant served a legal notice dated 17-2-1999 to the non-applicant by registered A.D. with acknowledgment due under section 138 of the Act, which was received by the non-applicant on 25-2-1999. On receiving no response from the non-applicant, applicant filed a complaint under section 138 of the Act on 17-3-1999, within the period of limitation prescribed therefor.

(3.) On the aforesaid allegations and after registering the complaint and noticing the non-applicant, the Court proceeded to examine the applicant, Dharanidhar before framing the charge. Thereafter it framed the charge against the non-applicant-Nasirkhan.