BALU SINGH Vs. SUNIL SINGH

JUDGEMENT

(1.) BEING aggrieved by the judgment dated 7.5.2008 passed by VI ASJ, Fast Track Court, Ujjain in Cr. Appeal No. 500/07 whereby the judgment dated 6.10.2007 passed by JMFC, Ujjain in Cr. Case No. 13346/06 whereby the petitioner was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act (which shall be referred hereinafter as "the N.I. Act") and sentenced for a period of 9 months and compensation of Rs. 90,000/- was maintained, the present petition has been filed.

(2.) SHORT facts of the case are that on 10.7.2006 respondent filed a complaint against the petitioner under Section 138 of the N.I. Act wherein it was alleged that a sum of Rs. 80,000/- was lent by the respondent to the petitioner for his needs. It was alleged that in lieu of which the petitioner issued a cheque of Rs. 80,000/-which was duly signed by him. It was alleged that upon presentation, the cheque was returned with a memo bearing remark "exceeds arrangement". It was alleged that thereafter a notice of demand was issued by the respondent which was duly received by the petitioner but in spite of receipt of notice neither cheque amount was paid nor notice was replied, hence the petitioner has committed an offence which is punishable under Section 138 of the N.I. Act and after taking cognizance and after framing of charges the petitioner be convicted.

(3.) LEARNED Counsel for petitioner submits that impugned judgment passed by the learned Courts below is illegal and deserves to be set aside. Learned Counsel submits that in support of the complaint, there is no legal evidence on the basis of which it can be said that contents of the complaint have been proved. It is submitted that respondent has not examined himself, on the contrary he has filed the affidavit in support of the complaint. It is submitted that in the affidavit at every place respondent has stated the word "Yours". It is nowhere stated by the respondent in the affidavit that petitioner has issued the cheque and it was signed by the petitioner. Learned Counsel submits that Chapter 9 of M.P. High Court Rules, 2008 deals with affidavit. As per Rule 7 of the Rules, in the affidavit it must state "I solemnly affirm or I state on oath." It is submitted that in view of this evidence which has been adduced by the respondent cannot be looked into. Learned Counsel further submits that petitioner is a trader and in the business of fertilizer. It is submitted that petitioner was selling the fertilizer as commercial agent of the respondent. Apart from this petitioner was also representative of music company. It is submitted that in that account the petitioner was to pay Rs. 40,000/- to the respondent for which blank cheque was given by the petitioner. It is submitted that cheque was misused by the respondent in filing the complaint. In view of the aforesaid facts learned Counsel submits that petition filed by the petitioner be allowed and impugned judgment be set aside.