RAJMAL Vs. HEERALAL

JUDGEMENT

(1.) This criminal appeal has been filed by the complainant against the order dated 13.12.2004, passed by the Chief Judicial Magistrate, Neemuch, in criminal case no.813/02, whereby complaint filed by the appellant under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act') has been dismissed.

(2.) Brief facts of the case are that the appellant is having his foundry in the name and style of 'Oswal Foundry' at Neemuch. He is doing the work of fabrication and manufacturing of tractor trolley. The respondent was knowing to him and there was number of transaction between them. Last transaction took place between them was on 20 th July, 1996. He gave Rs.30,000/- as loan to the respondent. The respondent has guaranteed to the said loan and issued two post dated cheques no.000558 and 000559 of Rs.15,000/- each of Central Bank of India, Bhagwanpura Branch. The said cheque was presented by the appellant encashment through his bank, State Bank of India, Kanawati Branch on 6.12.1996. The said cheque was returned unpaid by a memo stating therein that account of the respondent at Central Bank of India was closed and both the cheques were not encashed. The appellant thereafter, issued notice by registered post under the provisions of Section 138 of N.I. Act on 8.12.1996.

(3.) The respondent inspite of receipt of notice had failed to make the payment and, therefore, he filed a private complaint under Section 138 of the N.I. Act on 8.1.1997. The respondent denied the said transaction and had taken a defence that he has been falsely implicated by the present appellant whereas, there was old transaction between them and in pursuance to the said transaction, he has issued two cheques of Central Bank of India, in respect of the transaction, which was held in the year 1985. It is further alleged that in the year 1996, no transaction was taken between them and on 20 th July, 1996, his wife was admitted at nursing home and she was operated and was hospitalized till 3.8.1997 and prayed for dismissal of the complaint.