IQBAL HUSSAIN Vs. ARVIND

JUDGEMENT

(1.) Being aggrieved by the judgment dated 2.5.2007 passed by JMFC, Indore in criminal case No. 1743 of 2005 whereby the respondent was acquitted for the offence punishable under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as "NI Act") and the complaint filed by the appellant was dismissed, the present appeal has been filed.

(2.) Short facts of the case are that a private complaint was filed by the appellant on 29.3.2006 alleging that a cheque of Rs. 1,00,000/- was given by the appellant to the respondent vide, cheque bearing No. 110377 dated 6.8.2005 of IDBI Bank, Ratlam Kothi, Indore. It was alleged that upon presentation, the said cheque was returned by the concerned Bank with a memorandum wherein the reason for returning the cheque was assigned as account closed'. It was alleged that after getting the cheque back on 24.8.2005 appellant issued the notice of demand dated 29.8.2005 which was duly served on 30.8.2005 but in spite of that the cheque amount was not paid. It was alleged that respondent has committed an offence punishable under Section 138 of NI Act by not making the payment of cheque amount. It was prayed that after taking cognizance respect be convicted. Upon presentation of the complaint which was duly supported by an affidavit, cognizance was taken by the learned Court below and after securing the presence of respondent charge was framed and after recording of evidence adduced by both the parties learned Court below acquitted the respondent by dismissing the complaint filed by the appellant against which the present appeal has been filed.

(3.) Learned Counsel for the appellant argued at length and submits that the learned Court below committed error in dismissing the complaint filed by the appellant and acquitting the respondent. It is submitted that the respondent has not disputed that respondent has taken a loan of Rs. 1,00,000/-. It is submitted that the respondent has also not disputed that the cheque was issued by him which bears the signature of respondent. It is submitted that the only fact which was disputed by the respondent was that the cheque was for old transaction which took place in the year 2001 and amount of Rs. 1,00,000/- which was taken by the respondent was already paid by the respondent to the appellant, out of which Rs. 53,389/- was paid by cheque on 17.9.2001 vide, cheque No. 72359 and rest of the amount was paid in cash. It is submitted that since the transaction of loan was not disputed and issuance of cheque was also not disputed, therefore, burden to prove was on the respondent that the said cheque was relating to some old transaction and the amount has been paid to the appellant. It is submitted that in the facts and circumstances of the case, learned Court below committed error in dismissing the complaint filed by the appellant.