MANOJ MORYA Vs. ANITA MINJ

JUDGEMENT

(1.) This appeal has been filed by the appellant/complainant under Sec. 378 of Cr.P.C. against the judgment dtd. 24/12/2021 passed by the JMFC, Gwalior, in Criminal Case No.1108/2012 whereby respondent has been acquitted of the offence under Sec. 138 of the Negotiable Instruments Act.

(2.) In brief facts of the case are that respondent was in need of money for purchasing the house, therefore, he borrowed a sum of Rs.7,00,000.00 on 18.9,2008 and thereafter on various dates a sum of Rs.4,50,000.00, thus, he borrowed a total sum of Rs.11,50,000.00 with the assurance that he will refund the aforesaid amount very soon. But when the respondent did not refund the amount even after expiry of period as assured by him, appellant demanded the amount, then cheque No.577406 dtd. 24/5/2011 of State Bank of India Branch Malroad Morar worth Rs.11,50,000.00 was given by the respondent. The said cheque was dishonoured on its presentation on 25/5/2011 with the note that cheque could not be encashed due to insufficient fund. Thereafter on 23/6/2011 he sent a registered notice to the respondent. Even after receipt of the notice, respondent did not pay the amount. Therefore, he filed a complaint under Sec. 138 of the Negotiable Instruments Act and adduced his evidence in support of the complaint.

(3.) Learned trial Court vide impugned judgment para 39 observed that there is no evidence as to whether notice issued to the respondent has been served on him or not, but as per the provisions of Order 5 Rule 9(5) of CPC as the acknowledge of said registered notice has not been received back within 30 days, it is presumed that notice has been served. Thus, notice dtd. 23/6/2011 has been presumed to be served on the respondent on 23/7/2011. Thereafter he has filed the complaint on 3/8/2011 before expiry of period of 15 days so prescribed under Sec. 138(c) of the Negotiable Instrument Act for the drawer of the cheque to make the payment to the payee, and therefore, the complaint under Sec. 138 of the Negotiable Instruments Act was not found maintainable and respondent was acquitted.