SARDA DEVI Vs. JAIRAM

JUDGEMENT

(1.) BEING aggrieved by judgment dated 17.1.2005, passed by 15th Additional Sessions Judge, Indore in Criminal Appeal No. 255/2004, whereby judgment dated 7.5.2004, passed by JMFC, Indore in Criminal Case No. 1914/ 2003, by which petitioner was convicted for an offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as N.I. Act) with a fine of Rs. 1,50,000/- and jail sentence of one month was maintained, the present petition has been filed.

(2.) SHORT facts of the case are that the respondent filed a complaint under Section 138 of N.I. Act on 7.4.1995 alleging that respondent lent a sum of Rs. 1 lac in cash on 7.3.1994 to the petitioner for her family needs and commercial need of her husband Ramlal. It was alleged that the petitioner issued post-dated cheque bearing No. 519253 dated 7.3.1995 and assured that upon presentation of the cheque amount shall be paid to the petitioner. It was alleged that after due date respondent submitted the cheque for encashment through Bank of India. Branch M.G Road, Indore but the same was returned back as the account was closed. It was alleged that the petitioner after issuance of cheque closed the account, which amounts to cheating. It was also alleged that after return of the cheque on 8.3.1995 respondent issued a notice for demand which was duly served but in spite of that cheque amount was not paid to the respondent. It was alleged that the petitioner has committed an offence which is punishable under Section 138 of N.I. Act. It was prayed that after taking cognizance and notice petitioner be punished.

(3.) LEARNED Counsel for the petitioner argued at length and submits that the impugned order is illegal, incorrect and deserves to be set aside. It is submitted that there was nothing on record to show that at any point of time amount of Rs. 1 lac-was given to the petitioner by respondent. It is submitted that much before issuance of cheque account was closed by petitioner, therefore, there was no justification on the part of the Courts below, in convicting the petitioner.