KISHANLAL Vs. MURLIDHAR

JUDGEMENT

(1.) THIS appeal has been preferred by the appellant, after obtaining leave from this Court as per provision U/S. 378(4) of the Cr.P.C against the impugned judgment of acquittal of the respondent passed by learned JMF.C, Indore in Criminal Case No. 168/1993 dated 30/11 /1995.

(2.) According to the appellant he advanced loan of Rs. 40,000/- to the respondent on 14/7/1991 and respondent executed receipt (Ex.P.4-C). This amount was to be returned according to the contents of the receipt on 14/9/1991 by the respondent but he failed to repay the amount. Respondent issued cheque of Syndicate Bank, Branch Nanda Nagar, Indore dated 2/9/1992 in favour of the appellant of Rs.40,000/- vide Ex.P.1-C. This cheque was deposited on the same day and returned by the bank with letter (Ex. P. 2-C) on 3/9/1992 because there was no sufficient fund. The appellant issued notice (Ex.P.5) on 4/9/1992 to the respondent which was received by turn. Ex.P.6 is the registered acknowledgment due along with postal receipt. Notice was also sent by U.P.C. Respondent sent reply (Ex.P.7-C) dated 21/9/1992 which was received by appellant. In this reply, respondent accepted raising of loan but denied any agreement or settlement to pay any interest. He also stated that he t gave cheque of without date to the appellant at the time of receipt of Rs.40,000/- and also told him that the moment he will get the money he would make the payment and receive back the cheque. He also stated in the notice that appellant inspite of promise, submitted the cheque for encashment in the bank because of which same was returned back to him without payment. The respondent accepted the liability of Rs. 40,000/- and expressed his hope to make the payment within 3-4 months as soon as he would receive the amount as he was doing the business as contractor. It is also contended by the respondent in the notice that at the time of handing over the cheque, he informed the appellant that there was no sufficient amount in his account. After receipt of this reply, appellant filed the complaint within stipulated period before the Court below on 16/10/1992 and examined himself as per provision U/S.200 of the Cr.P.C. on 11/11/1992. The complaint was registered by order dated 10/2/1993 and respondent appeared before the trial Court on 2/4/1993. On 6/8/1993 particulars of the charges were read over to the respondent and he denied the same, thereafter appellant examined himself on 4/11/1995 and also cross examined. His witness Parthsarathy, Manager, Syndicate Bank, Nanda Najjar was also examined and cross examined on 30/6/1995.

(3.) Respondent did not examine himself or any witness in bis favour. Accused statement was recorded by the trial Court on 29/11/1995 and his case was that he handed over the cheque without mentioning any date and he was ready to pay the amount. The learned trial Court, after hearing both the parties, dismissed the complaint. Hence mis appeal filed by the appellant/complainant.