AKASH TIWARI Vs. DEEPAK MAROTHIYA

JUDGEMENT

(1.) The present petition has been filed by the petitioner who is the complainant before the learned trial Court who is aggrieved by the judgment of acquittal dtd. 24/3/2007 passed by the learned Court of sessions in Criminal Appeal No.4/2007 by which the appellate Court reversed the judgment of conviction and sentence passed by the learned trial Court dtd. 6/11/2006 in Criminal Case No.200/2005.

(2.) The petitioner is the holder of cheque issued by the respondent Deepak Marothiya. The case of the petitioner is that the respondent borrowed Rs.65,000.00 from the applicant for his professional requirement in the month of October, 2004 and the money was borrowed in two installments of Rs.30,000.00and Rs.35,000.00. In part payment of the said debt, the respondent allegedly issued a cheque No.986013 dtd. 10/12/2004 for an amount of Rs.25,000.00which, when deposited by the petitioner was returned without being honored. The cheque was deposited on 16/4/2005 and it was dishonored on 18/4/2005 as reflected by the cheque return memo. On 20/4/2005 the notice was issued to the respondent No.2 and Ex.P/6 is the note of the Postal Department which reflects that the notice was returned as it was not accepted by the respondent. Vide judgment dtd. 6/11/2006, the learned trial court convicted the respondent and asked him to pay an amount of Rs.25,000.00 and in the event he did not pay the said amount to the complainant he would have to undergo imprisonment for six months. The impugned order allowed the appeal and acquitted the respondent.

(3.) Learned counsel for the petitioner submits that the learned appellate Court disregarded the presumption under Sec. 139 of the Negotiable Instrument Act which placed the burden on the respondent to show that the cheque issued by him was not for the discharge of a debt. During the course of the trial, the respondent exhibited document D/1 which is a receipt dtd. 7/10/2004 which bore the signature of petitioner / complainant wherein the petitioner accepted Rs.30,000.00 from the respondent and issued a receipt for it. Ex.D/2 is complaint which is filed by the respondent before the police on 12/4/2005 for an incident that had taken place on the previous day i.e. on 11/4/2005 where the respondent allegedly was heckled by the petitioner when he went to ask the petitioner to return the cheque as he had already discharged his debt alongwith interest on 7/10/2004 itself.